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A  TREATISE 


ON  THE 


OEGANIZATION,  CUSTODY 


AND 


CONDUCT  OF  JURIES, 


IXCLUDING 


GRAND  JURIES. 

BY 
SEYMOUR  D.  THOMPSON  and  EDWIN  G.  MERRIAM. 


ST.  LOUIS,  MO.: 

WILLIAM   H.    STEVENSON, 

LAW  PUBLISHER  AND  PUBLISHER  OF  THE 

CENTRAL  LAW  JOURNAL. 

1  8  8  2. 


T 

r : 

U2Z 


T3T1G^ 


Copyright.  1S82. 

BY 

Seymour  D.  Thompson  and  Euwix  G.  Merriam. 


PRIXTED    BY  TIIK   CBNTUVL   LVW  .lOUUNVF-. 


\ 


^ 


PREFACE. 

The  following  pages  are  the  result  of  an  effort  to  put  in 
convenient  shape  for  the  use  of  the  bench  and  bar,  the 
large  body  of  statute  and  case  law  relatino-  to  the  followino; 
subjects : 

1.  The  organization  of  trial  juries. 

2.  The  custody  and  conduct  of  trial  juries. 

3.  The  organization,  powers  and  proceedings  of  grand 
juries. 

In  order  to  avoid  a  misunderstanding  as  to  the  scope  of 
this  work,  it  is  proper  to  state  that  it  does  not  relate  to  the 
conduct  of  JiD'f/  trials,  except  in  so  far  as  this  subject  is 
involved  in  the  topics  above  stated.  The  conduct  of 
court  and  counsel  in  the  presence  of  the  jury  while 
the  trial  is  in  progress ;  the  function  of  the  court  as 
judge  of  the  law,  and  that  of  the  jury  as  judges  of 
the  facts ;  the  instructing  of  the  jury ;  the  form  and 
substance  of  the  verdict,  and  the  manner  of  its  delivery 
and  reception,  (except  in  the  case  of  sealed  verdicts,) 
are  all  matters  which  have  been  carefully  excluded 
from  this  work.  In  short,  it  is  a  work  upon  juries,  and 
not  a  work  upon  trials.  The  reason  of  this  exclusion 
may  not  seem  so  plain  to  our  readers  as  to  us.  The  mass 
■of  decisions  and  statutes  relating  to  the  subjects  which 
we  have  considered  could  not  be  treated  in  less  space 
than  we  have  given  to  it,  without  a  degree  of  condensa- 
tion which  would  be  incompatible  with  a  clear  and  explicit 
treatment  of  the  numerous  topics  presented. 

In  carrying  out  this  plan  of  treatment,  we  have  atten- 


74005;^ 


IV  I'KKr.VCK. 

lively  examiiu'd  and  cited  over  four  lli()ii>:ind  cases.  Some 
of  these  cases  present  a  variety  of  topics  relating  to  the 
su])ject  of  this  work,  and  have  necessarily  been  cited  many 
times.  It  is  thonght  by  some  law  writers  that  thoy  dis- 
charge their  duty  to  the  profession,  when  they  [)rescnt 
what  are  supposed  to  be  the  common  law  rules  appli- 
cable to  the  subject  under  treatment  :  Icavinu'  the  reader 
in  each  State  to  discover  for  himself  how  far  those  rules 
have  been  changed  by  statute  in  his  particular  jurisdiction. 
This  we  regard  as  a  very  perfunctory  view  of  the  dutics- 
which  such  a  writer  owes  to  the  profession.  Our  view 
is  that  it  is  (juite  as  important  for  judges  and  practitioners- 
to  have  a  familiar  knowledge  of  the  law  which  has  been 
enacted  by  the  legislatures  upon  any  subject,  as  the  law 
Avhich  has  been  built  up  by  the  courts.  Many  of  these- 
questions,  where  not  directly  governed  by  controlling 
statutes  or  decisions,  are,  in  a  large  measure,  questions 
of  sound  public  policy ;  and  the  public  policy  of  the 
country  upon  any  given  question  is  as  plainly  indicated, 
in  the  o;eneral  concurrence  of  the  legislation  of  the- 
different  States,  with  reference  to  that  ((ucstion,  as  in  the- 
jreneral  concurrence  of  judicial  decisions. 

Proceeding  upon  this  view,  we  have  made  the  body  of 
statute  law,  in  England  and  in  tliis  country,  with  refer- 
ence to  the  subject  of  juries,  the  subject  of  careful  study 
and  comparison.  The  reader  must  not  suppose  that  we 
have  copied  these  statutes,  either  into  our  text  or  notes. 
This  has  been  done  only  in  the  case  of  a  few  very  im- 
portant statutes,  so  important  that,  we  trust,  the  reader 
will  perceive  in  each  case  the  propriety  of  this  course.' 
As  a  rule,  Ave  have  confined  ourselves  to  stating  the- 
general   resultft    of    legislation    upon    particular    (|uestions,. 

1  See  §§  49.  173,  222,  .■)28. 


PREFACE.  V 

carefully  citing  the  latest  statutes  accessible  to  us.^  In 
this  way,  we  hope  to  have  made  this  work  a  fair  index 
to  the  very  large  body  of  case  and  statute  law  on  the 
subjects  embraced  in  it. 

It  will  be  seen  that  Part  I.  relates  exclusively  to 
trial  juries.  In  Title  I.  of  this  part,  we  have  endeav- 
ored to  give  a  complete  sketch  of  the  organization  of 
trial  juries  down  to  and  including  the  swearing.  In  the 
concluding  chapter  of  this  title,  we  have  discussed  the 
effect  of  objections  taken  after  verdict  to  irregularities 
which  have  taken  place  in  the  process  of  irapanneling. 
We  have  also  considered  in  the  same  connection  what  the 
I'ecord  should  show  with  reference  to  these  matters,  in 
order  to  i)resent  them  for  revision  on  appeal  or  error. 

Title  II.  embraces  matters  which  constitute  familiar 
grounds  for  a  new  trial,  viz :  the  unlawful  separation  of  the 
jury ;  improper  communications  with  jurors  ;  regulations 
relating  to  their  food,  drink,  medicine,  and  entertainment 
■during  protracted  trials  ;  the  improper  use  of  books  and 
papers  in  the  jury  room  ;  improper  methods  of  arriving 
i\t  a  verdict ;  concluding  with  a  general  sketch  of  the 
principles  Avhich  govern  the  granting  of  new  trials  on  the 
ground  of  misconduct  of  juries. 

Part  II.  is  intended  to  present  a  complete  discussion  of 
all  matters  relating  to  the  grand  jury ;  its  powers  and 
•duties  :  the  incidents  of  its  organization  ;  the  right  of  an 
accused  person  before  and  after  indictment  to  object  to  in- 
dividual members,  or  to  the  whole  body,  for  incompetency, 
or  for  causes  going  to  the  validity  of  its  organization  ; 
the  proceedings  of  the  grand    jur}^    including   the  return 

1  For  instances  of  this,  we  refer  to  §§  17,  24,  2G,40,  45,  69,  162,  165, 173, 
379,  402,  473,  474.  481,  483,  484,  486,  480,  498,  516,  517,  536,  583,  593,  623, 
«2.5,  634,  641.  6.54,  675,  684,  701,  706,  711. 


VI  I 'HE  FACE. 

of  their  tindiiig  :  wliiit  IIk'  rccoi'd  should  show  as  to  the 
organization  of  the  grand  jury,  and  its  proceedings  ;  the 
obligation  of  secresy  resting  upon  individual  members  of 
this  l)ody :  and  linally  the  personal  liability  of  grand 
jurors. 

Having  stated  the  contents  and  the  object  of  this  work, 
these  prefatory  remarks  might  properly  end  here  ;  but  some 
difficulties  "which  Ave  have  encountered  in  the  course  of 
our  investigations  suirii"est  themselves  as  of  sufficient  im- 
portance  to  be  specially  noticed. 

The  statutes  of  the  several  States  are  leplete  with 
provisions  which  specifically  direct  the  mode  of  preparing 
the  jury  list,  and  drawing  and  summoning  the  panel.  The 
sheriff  did  all  these  things,  at  common  law,  very  much 
according  to  his  discretion.  There  were  no  jury  lists; 
there  was  consequently  no  formality  like  the  drawing  of  a 
panel  for  service  during  the  whole  or  a  portion  of  the 
term.  This  officer,  or  his  deputy,  returned  whom  ho 
pleased,  having  regard,  of  course,  that  the  persons  sum- 
moned as  jurors  possessed  the  qualifications  demanded  by 
the  law.  Clearly,  the  sheriff  Avas  exposed  to  constant 
temptation  to  violate  his  duty,  and  frequently  both  he 
and  his  deputies  did  not  scruple  to  do  so.  Lord  Coke 
laments  that  "  throu2:h  the  subteltv  and  untrue  demeanor 
of  sheriifs  and  their  ministers,  great  extortions  and  op- 
pressions be  and  haAc  l)een  committed."^  The  only 
means  Avhich  the  common  law  gave  for  correcting  such 
abuses  Avas  the  challenge  to  the  array.  This  consisted 
in  an  exception  to  Avhole  of  the  panel  returned,  grounded 
upon  the  partiality  or  default  of  the  sheriff,  coroner,  or 
other    officer    making    the    return.-      This    challenge     was 

1  3  Co.  Inst.  33. 

2  Co.  Litt.  150.  a. 


PREFACE.  Vll 

readily  allowed,  not  only  for  the  actual  misconduct  of  the 
sheriff  in  summoning  the  panel,  as  by  consenting  to  the 
"nomination"  of  jurors  by  an  interested  party,^  but  also 
for  other  causes  only  remotel}^  affecting  his  impartiality.^ 
The  challenge  to  the  array,  or  to  the  panel,  as  it  is  fre- 
quently called,  exists  in  practice  to-day ;  but,  since  the 
adoption  of  statutes  directing  the  preparation  of  the  jury 
list,  and  the  drawing  of  the  panel  from  the  jury  box,  the 
sheriff  has  less  means  of  affecting  the  constitution  of  the 
panel,  and  the  challenge  to  the  array  or  panel  has  lost 
much  of  its  original  significance.  In  addition  to  the 
grounds  for  this  challenge  at  common  law,  it  may  now  be 
taken  for  irregularities  in  the  process  of  making  the  jury 
list,  in  the  filling  the  jury  box  or  jury  wheel,  and  in  the 
drawing  of  the  panel.  But  the  very  abundance  of  statutory 
provisions  regulating  these  matters  would  seem  to  indicate 
the  unreasonableness  of  requiring  a  technical  compliance 
with  the  hnv  in  all  particulars  ;  and  we  have  endeavored  to 
enforce  this  view.  However,  the  chapter  devoted  to  this 
discussion  will  show  that  some  courts  are  absurdly  punc- 
tilious in  this  connection. 

The  chaotic  state  of  the  law  in  regard  to  the  disquali- 
fication of  i^articular  jurors  in  criminal  cases,  arising  from 
the  formation  or  expression  of  an  opinion  in  reference 
to  the  guilt  or  innocence  of  the  accused,  deserves  par- 
ticular attention.  We  have  discussed  this  matter  at  con- 
siderable length,  and  have  endeavored  to  seize  upon  the 
salient  points  of  the  difliculty,  as  presented  by  a  very  large 
body  of  decisions.^  It  will  be  seen  that  much  contrariety 
of  decision  exists  in  this  connection.     Courts  of  different 

1  Potit,  §  132. 

2  Post,  §  130  et  seq. 

3  Sec.  191  et  seq. 


VIU  PREFACE. 

States  part  company  at  many  points,  and  in  some  cases 
courts  find  difficulty  in  reconciling  their  own  decisions  with 
each  other.  Kcfincd  metaphysical  distinctions  are  at- 
tempted to  l)c  engrafted  upon  the  law,  to  evade  tlie  Delphic 
utterance  of  Lord  Coke  that  "he  [the  juror]  must 
stand  indifferent  as  he  stands  unsworn."  Trial  courts  have 
not  correctly  apprehended  the  views  of  appellate  courts, 
and  the  result  has  been  fre(|uent  failures  of  justice,  caused 
by  the  granting  of  new  trials,  or  fantastic  displays  like 
that  in  People  v.  Bodine,^  where  three  weeks  were  con- 
sumed in  an  unsuccessful  effort  to  obtain  a  jury.-  The 
common  law  certainly  held  a  juror  to  be  incompetent,  who 
"declared  his  opinion  ])eforehand  that  the  party  is  guilty, 
or  Avill  be  hanged,  or  the  like  ;  '"  ''  and  it  is  now  generally 
conceded  that  this  dis(jualitication  attaches  to  the  formation 
of  an  opinion,  although  such  opinion  has  never  been 
expressed.^  But  courts  have  again  and  again  i)ointed  out 
that  the  standard  of  absolute  indifference  cannot  be 
demanded  in  the  age  of  newspai)ers  and  telegraphy.  We 
must  recede  from  the  common  law  standard.  But  how 
far?  All  the  confusion  in  the  law  upon  this  point  results 
from  the  fact  that  judges  are  unable  to  find  terms 
sufficiently  definite  to  answer  this  question  with  precision. 
The  organic  law  of  every  State  requires  that  the  jury  shall 
be  "  impartial."  The  courts  cannot  fritter  away,  and  the 
legislatures  are  powerless  to  take  away,  a  substantial  cause 
of  challenge."'     liut  the  lejzislaturo  of  one  State  has  taken  a 

^Edm.  Sel.  C:is.  :{C;  j><>si,  ^  222,  note. 

2  Over  six  thousand  jurors  wero  suiiiiiioiied,  of  wliom  four  tliousand 
were  tried  upon  cliallenges,  and  all  set  aside  except  ten. 

3  2  Hawk.  r.  (;.  oil.  43,  §  27. 
^  Post,  §  206. 

5  See  this  point  well  reasoned  in  State  v.  Mi-Clear,  11  Xe\.  :V.). 


PREFACE.  IX 

long  stride  in  the  right  direction.  We  allude  to  the  State 
of  New  York.  The  statute  of  1872,^  cuts  up  by  the  roots 
Jill  previous  attempts  to  settle  this  matter  by  judicial 
decision.  Without  infriniifino:  the  constitutional  rioi;ht  to 
i\n  impartial  jury,  it  declares  in  plain  terms,  easy  of  appli- 
<'ation  and  conducive  to  the  administration  of  justice  by 
intelligent  jurors,  a  rule  which  the  legislatures  of  other 
States  will  do  well  to  follow. 

The  distinction  between  challenges  for  principal  cause, 
and  challenges  to  the  favor,  is  less  clearly  defined  than 
formerly.  This  arises  from  the  fact  that  one  reason  for 
the  distinction  has  almost  passed  away.  The  tribunal 
known  as  the  triors  now  exists  in  few  jurisdictions.  The 
triors  determined  exclusively  challenges  for  favor.  But 
since  the  almost  universal  abolition  of  this  tribunal,  all 
challenges  being  tried  by  the  court,  the  necessity  of  deter- 
mining whether  a  given  challenge  is  for  principal  cause 
or  for  favor  no  longer  exists. 

There  is  considerable  confusion  in  the  decisions  relating 
to  the  grand  jury.  It  seems  quite  clear  that  grand  jurors 
were  not  subject  to  challenge  at  common  law  ;  but  the  inti- 
mation of  Serjeant  Hawkins  to  the  contrary  has  done 
much  to  unsettle  the  law  upon  this  point.  The  grand  jury 
was  organi-^ied  without  the  intervention  of  accused  persons, 
and  no  opportunity  was  given  for  objection  to  its  constitu- 
tion, until  the  passage  of  the  statute  of  11  Hen.  IV.,  c.  9, 
providing  a  means  for  avoiding  indictments  found  by  grand 
jurors  disqualified  to  act,  or  such  as  were  returned  by  the 
sheriffs  or  bailiffs  at  the  instigation  of  others.  This  is 
usually  done  by  a  plea  in  abatement  entered  by  the  accused 
upon  arraignment :-'  but  some  courts  permit  it  to  be  done  b}-^ 

1  Laws  X.  Y.  1872,  ck.  475.  p.  li:W:  post.  §  '221. 
-  PuHt .  i;  ,527. 


X  ri;i:rA(i:. 

:i  motion  to  quash  ;'  while  some  courts  deny  the  right  of  the- 
accused  to  avoid  the  indictment  by  showing  the  disqualitica- 
tion  of  particular  niemi»ers  of  the  body  by  whom  it  was 
found;-  and,  linally,  in  many  States  where  the  accused 
originally  had  the  right  to  })U'a(l,  in  abatement  of  the 
indictment,  the  disqualitication  of  i)articular  jurors,  or 
circumstances  affecting  the  regularity  of  their  sum- 
moning, a  statutory  prohibition  has  l)een  interposed  to 
render  the  punishment  of  criminals  more  certain.'^  In 
^lassachusetts  an  accu^^ed  [)erson  has  never  been  permitted 
to  challenge  a  grand  juror,*  or  to  i)lead  his  distiualitication 
ill  abatement  of  the  indictment.'  In  New  Jersey  the 
Supreme  Court  on  one  occasion  pointed  out  what  seemed  to 
it  conclusive  objections  against  permitting  a  challenge  to 
l)e  made  to  grand  jurors,''  and  on  a  later  occasion  made  an 
equally  strong  showing  against  permitting  such  objections 
to  bo  made  by  a  plea  in  abatement.' 

Much  diversity'  of  opinion  also  exists  as  to  the  iiujuisi- 
torial  powers  of  the  grand  jury.  Able  judges  have  held 
that  they  are  quite  circumscribed  in  this  particular.^  Other 
courts  hold  that  this  body  is  vested  with  a  general  in- 
quisitorial power  and  duty  to  search  out  all  offences  against 
the  law.''  In  some  States  this  inquisitorial  power  is  con- 
fined to  the  investigation  of  particular  classes  of  crime. ^" 
These  contradictory  views  have  been  examined  with  care, 
and  the  limits  of  the  jurisdiction  of  the  grand  jury  indi- 
cated, in   the  light  c)f  such  decisions  as  the  l)ooks  <ontaiii. 

iPosf,  §.543.  2Po««,  §531; 

3  Post,  §  53G.  *  Tucker'.s  Case.  S  Mas.s.  2.s6. 

5  Com.  V.  Sinilh.  'J  Ma>>.  1U7.        "  State  v.  Kockafellow,  6  N.  J.  L.  332. 

'  State  V.  Rickey.  10  X.  .1.  L.  S3.  SO.  340. 

8  Post,  §  G16.  **  Pui-t.  §  dl.".,  subscu.  2. 

J"  Post,  §  617. 


PREFACE .  Xr 

A  curious  contiict  of  opinion  will  he  found  in  lelution  to 
the  indorsement  of  the  finding  of  the  grand  jury.  The  usual 
method  doubtless  is  for  the  foreman  to  affix  his  sio;uature 
to  an  indorsement,  certifying  the  bill  to  be  true,  or  the 
contrary.  Some  courts,  however,  dispense  with  the  cer- 
tificate, provided  the  signature  of  the  foreman,  is  duly 
indorsed  upon  the  indictment.^  Others  dispense  with 
the  signature  of  the  foreman,  provided  the  certificate  is 
duly  indorsed  f  and  in  Virginia  it  seems  that  neither  an. 
indorsement  of  the  findino",  nor  the  sio'nature  of  the 
foreman  is  necessary,  where  it  appears  from  the  record 
that  the  bill  was  returned  by  the  grand  jury  as  true.'^ 

There  can  be  no  doubt  that  the  obligation  of  secresy 
resting  upon  grand  jurors  has  been  much  relaxed  of  late. 
This  is  partly  the  result  of  judicial  decisions,  and  partly 
due  to  the  interposition  of  the  legislature.*  The  later  de- 
cisions, therefore,  as  intimated,  will  be  found  to  clash  in 
some  respects  with  earlier  adjudications.  This  modification 
of  the  law  has  never  been  carried  further  than  is  essential 
to  the  purposes  of  public  justice  or  the  protection  of  pri- 
vate rights.  The  proceedings  of  the  grand  jury  are  as  much 
hedged  about  with  restrictions  against  impertinent  curiosity 
as  ever. 

It  is  fashionable  for  the  profession  to  complain  of  the 
multiplication  of  law  books,  and  for  authors  in  presenting 
new  law  books  to  the  profession  to  say  something  in  the 
nature  of  an  apology.  Such  apologies,  except  so  far  as 
they  give  expression  to  the  sense  which  every  candid  author 
feels  of  the  imperfections  which  necessarily  attend  his- 
efforts,  are  out  of   place.     A  good  book,  and  one  that  will 

1  Post,  §  672.  2  Post,  §  671 . 

3  Post,  §674.  *Pos«,  §706. 


-^11  PREFACE. 

3)rove  useful  to  the  profession,  needs  no  apology.  On  the 
other  hand,  no  apology  can  atone  for  the  Avrong  of  inflicting 
a  poor  one  upon  their  confidence.  The  complaints  of  the 
profession  about  the  multiplication  of  law  books,  when 
analyzed,  will  be  found  to  l)e  nothing  more  than  complaints 
ngainst  the  multiplication  of  poor  and  unnecessary  books. 
There  are  not  enough  really  (/oocZ  law  books,  and  those  which 
are  sfood  are  not  srood  enouirh.  We  offer  this  book  to  the 
l)rofession  with  the  feeling  that  the  general  judgment 
which,  after  a  period  of  time  they  shall  bestow  upon  it, 
must  afford  the  only  answer  to  the  question  whether  we 
have  acted  wisely  or  unwisely  in  writing  and  publishing  it. 
Whatever  may  be  thought  or  said  upon  its  first  appear- 
ance, we  shall  know  in  the  course  of  time  Avhether  it  be 
worth  preserving  in  the  legal  literature  of  the  country. 
If  it  shall  prove  so,  errors  and  omissions  may  be  corrected 
in  a  future  edition.  Perfection  lies  far  off;  we  cannot 
hope  to  have  it  in  this. 

THE   AUTHORS. 
St.   Loris,  August,   1882. 


TABLE  OF  CONTENTS. 


PART  J.— Of  Trial  Juries.— TITLE  I.— Of  the  Organ- 
ization OF  Trial  Juries. 

CHAPTER  I. 

iSECTIONS. 

Of  THE  Constitution  AND  KiM>3  OF  TuiiLJouiEs,     ....  j-17 

Article  I.— The  Venue. 

II.—  The  Petit  Jury. 
III.— The  Special  Jury. 
IV.— The  Jury  De  Meclietate  Lingua-. 

CHAPTER  II. 

Of  t^UALiFiCATiONs  Foi:  JuitY  Duty,       ......  Jl-:!! 

CHAPTER  in. 
Of  Exemptions  from  Jury  Duty,      .......       :!4-4() 

CHAPTER  IV. 

Of  the  Selection  OF  the  jury  List,  .....  43-5.1 

ARTICLE  L— In  the  State  Courts. 

IL— In  the  Federal  Courts. 

CHAPTER  V. 

Of  the  Drawing  of  the  Panel,         .......       .i.5-6:l 

CHAPTER  VI. 

Of  Summoning  AND  Enforcing  the  Attendance  OF  Jurors,         .  .       titi-85. 

CHAPTER  VII. 
Of  Talesmen,        ..........       !ii)-l()4 

CHAPTER  VIII. 
Of  the  Service  of  the  Panel  on  the  Accused,       ....       108-lii 


XIV 


TABLE  OF  CONTENTS. 


CHAPTER  IX. 

•<JF  THE  CaAi.i,ENi;K  TO  Tin;  Aki;ay, 

CIIArTER  X. 

Of  Peremptory  Challenges,         .  .  .  . 

CPI AFTER  XI. 

Ok  THE  Grounds  OF  Challenges  FOR  Cause.  . 

ARTICLE  I.— Various  enumerated  Grounds. 
IT.— Bias,  Prejudice  or  Opinion. 

CHAPTER  Xjr. 

Of  THE  Trial  OF  Challenges,       .  .  .  . 

CHAPTER  XIII. 
Of  Impanelling  THE  .JuRv,  .  .  .  . 

CHAPTER  XIV. 

Of  Swearing  the  Jury,         ..... 

CHAPTER  X\'. 
Of  Objections  after  Verdict,      .  .  .  . 


135-147 


1.V2-166 


170-2-24 


•2.31-2.53 


•257-280 


286-292 


294-305 


TITLE   II.  —  Of  the  Custody  and  Conduct  of    Trial 

Juries. 

CHAPTER  XVI. 

Ok  the  Custody  and  Separation  of  Juries,  ....       :U0-341 

CxVAPTER  XVII. 

Of  Improper  Communications,      .......       348-365 

CHAPTER  XVIII; 

Of  Eating  AND  Drinking, Medicine  AND  Entertainment,  .  370-379 

CHAPTER  XIX. 
Of  Books  and  Papers  in  the  Jury-Koom,        .....       381-402 


TABLE  OF  CONTENTS.  XV 

SECTIONS. 

CHAPTER  XX. 

Of  IMPROPKR  Metkods  oi' AuiaviNc;  AT  A  Verdict,  .  .  .       408  418 

CHAPTER  XX[. 

Ok  THE  Principles  WHICH  govern  the  Granting  ok  New  Trials  on 

THE  Ground  OF  Misconduct  OF  Juries,  ....       +-2-2-456 

PART  II.  — Of  the  Grand  Jury. 

CHAPTER  XXH. 

OF  THE  Origin  of  the  Grand  Jury,  ......       403  4G 

CHAPTER  XXIH. 
Of  THE  Established  Grand  Jury  AND  ITS  Functions,       .  .  .       m^-il 

CHAPTER  XXrV. 

Of  the  Qualifications,  Selection,  Drawing  and   Summoning    <^f 

Grand  Jurors,      .........       480-48G 

CHAPTER  XXV. 

Of  Talesmen  AND  Special  Grand  Jurors,       .....       488-5 

CHAPTER  XXVI. 

Of  Objections  to  Grand  Jurors,  ......       .107-574 

Article  I.— By  Clialleuge. 

IL— By  Plea  in  Abatement. 
III. — By  Motion  to  Quash. 
IV. — Objections  when  made. 
V. —Objections  to  the  Panel. 
VI.— Objections  to  the  Polls. 

CHAPTER  XXVH. 

Of  Impanelling  the  Grand  Jurv,  ......       .")77  586 

CHAPTER  XXVHI. 

Of  Swearing  the  Grand  Jury,       .......       .">89-593 

CHAPTER  XXIX. 

Of  the  IlELATioxsiiir  of  Court  and  Grand  Jury,    ....       595  GOl 


VXI  TABLE  OF  CONTKNTS. 

SECTIONS. 

CHArTKK   XXX. 

tH  THE  I'DW  i;us  oi   rm;  (;i!AND  .Ji'in ,       ...  .  .       KOt-Glii 

CHAPTER  XXXi. 

Ol     rHi:  I'Kix  KEDINGS  Ol    THE  Cilt.VNI)  JURT,  .  .  62"2-68T 

.MniCLE  I.— Pi(>Un>in;iry  I'roceecliugs. 
II. — Sessions  how  far  Secret. 
III.— Hearing  the  Evidence. 
IV.— The  Finding, 
v.— Indorsement  of  Finding. 
VI.— Other  Indorsements. 
VII.— Irregularities  in  Proceeding.^. 

CHAPTER  XXXir. 

oi   \\  ii.VT  THE  IJf.(;()ki>  .Misr  sii(j\\-,  ......        r.-t;*  t>'.)K 

CHAPTER  XX XI 11. 
Ok  THE  OBMd.vTiON  OF  Secrecy,     .......       701-707 

CHAPTER  XXXIV. 

OKTIIE  PERSoKAlLIAUIMTV  OK  (;i!.VNl>  JUliORs,  ....         710-711 


TABLE  OF  CASES  CITED. 


Aaron  v.  State,  37  Ala.  lOfi,  p.  175. 

Aaron  v.  State,  39  Ala.  75,  p.  97. 

Abel  V.  Kennedy,  3  G.  Greene,  47,  pp. 

496,  553. 
Abram  v.  State,  25  Miss.  589,  pp.  733,  7:5. 
Acliey  V.  State,  64  Ind.  56,  p.  305. 
Adams  v.  People,  47  111.  376,  pp.  354,  360. 
Adams  v.  State,  11  Ark.  466,  pp.  317,  318. 
Adams  V.  State,  U  Ind.  304,  p.  735. 
Adkins  v.  Williams,  23  Ga.  222,  p.  394. 
Aikin  v.  State,  35  Ala.  399,  pp.  70,  99,  100. 
Albert  v.  White,  33  Md.  297,  p.  34. 
Albrecht  v.  Walker,  73  111.  69,  p.  202. 
Alcott  V.  Boston  Steam  Flour  Mill  Co., 

11  Gush.  9  ,  p.  496. 
Alexander  v.  Dunn,  5  Ind.  122,  pp.  339, 

342,  3.55,  484,  487. 
Alexander  v.  Jameson,  5  Binn.  238,  pp. 

470,  471,  477. 
Alexander  v.  O-hkogh,  33  Wis.   277,  p. 

297. 
Alexandria  v.  Brockett,  1  Crancli  C.  C. 

505,  p.  -<?5. 
Alfred  v.  State,  2  Swan,  581,  p.  224. 
Alfred  v.  State.  37  Miss.  296,  pp.  228,  236. 
Alger  V.  Thompson,  1  Allen,  453,  pp.  481, 

487. 
Algier  v.  Steamer  Maria,  14  Cal.  167,  p. 

195 
Ailard'v.  Smith,  2  Mete.  (Ky.)  297,  p.-512. 
Allen  V.  Aldrieh.  29  N.  H.  6.3,  p.  423. 
Allen  V.  Blunt,  2  Woodb.  &  M.  121,  pp. 

428,  527,  528. 
Allen  V.  Com.,  2  Bibb,  210,  pp.  718,  721. 
Allen  V.  People,  77  111.  384,  p.  649. 
Allen  V.  State,  60  Ala.  19,  p.  328. 
Allen  V.  State,  51  Ga.  264,  p.  10. 
Allen  V.  State,  61  Ga.  166,  p.  523. 
Allen  V.  State,  77  111.  484,  p.  608. 
Allen  V.  State,  54  Ind.  461,  pp.  6,  7. 
Allen  V.  State,  5  Wis.  329,  p.  662. 
Alleway  v.  Rowden,  2  Show.  422,  pp.  248, 

280. 
Alley  V.  State,  32  Ind.  476,  pp.  730,  731, 

733. 
Allison  V.  State.  45  111.  37,  p.  547. 
Alston  V.  Manning,  Chase's  Dec.  46,  p.  48. 
American  Ins.  Co.  v.  Can!  er,  1  Pet.  511, 

p.  51. 
American  Ins.  Co.  v.  Mahone,  56  Miss. 

180,  pp.  24,  277. 
Amherst  v.  Hadley,  1  Pick.  38,  pp.  323, 

340,  346. 
Amick  V.  Young,  69  111.  542,  p.  308. 
Amsby  v.  Dickhouse,  4  Cal.  102,  p.  539. 
Anderson  v.  Green,  46  Ga.  361,  p.  540. 
Anderson  v.  State,  5  Ark.  444,  pp.  75,  323, 

336. 
Anderson  v.  State,  34  Ark.  257,  p.  329. 
Anderson  v.  State,  14  Ga.  71,  pp.  203,  211, 

304,  346. 
Anderson  v.  State,  63  Ga.  675   rj.  189. 


Anderson  v.  State,  26  Ind.  89,  p.  709. 
Anderson  v.  State,  28  Ind.  22,  pp.  360, 

361,380. 
Anderson  v.  State,  42  Tex.  389,  p.  329. 
Anderson  v.  Wasatch  etc.  R.  Co.,  2  Utah, 

518,  p.  275. 
Andrews  v.  Thornton,  8  Bing.  64,  p.  14. 
Andrews  v.  Tinsley,  19  Ga.  303,  p.  479. 
Annis  v.  People,  15  Mich.  511,  p.  664. 
Anon.,  Anderson,  272,  p.  280. 
Anon.,  1  Bro.  (Penn.)  200,  p.  75. 
Anon.,  1  Bro.  (Penn.)  121,  p.  123. 
Anon.,  Dyer,  177.  b.  pi.  (34),  p.  IIB. 
Anon.,  2  Dyer,  176.  a.  pi.  (27),  p.  196. 
Anon.,  3  Dyer,  300.  b.  pi.  (35),  p.  liO. 
Anon.,  2  Diill.  382,  p.  93. 
Anon.,  1  Johns.  314,  p.  16. 
Anon.,  1  Pick.  196,  p.  74. 
Anon.,  Rnss.  &  Ry.  177,  p.  570. 
Anon.,3Salk.  81,  p.  150. 
Anon.,  1  Salk.  1.52,  pp.  170,  249,  2.57,  260. 
Anon.,  1  Salk.  405,  p.  12. 
Anon.,  3  Salk.  191,  p.  730. 
Anson  v.  Dwight,  18  Iowa,  214,  p.  201. 
Ansehicks  v.  State,  6  Tex.  App.  524,  pp. 

548,  557. 
Anthony  v.  Smith,  4  Bosw.  503,  p.  355. 
Apperson    v.  Logwood,  12    Heisk.  262, 

p.  225. 
Applegate  v.  Boyles,  10  Ind.  435,  p.  317. 
Archer  v.  Bamford,  1  Car.  &  P.  64,  p.  13. 
Argent  v.  Darrell,  3  Salk.  648,  p.  195.i 
Armistead  v.  Com.,  11  Leigh,  657,   pp. 

214,  219,  222,  223,  224.  228. 
Armleder  v.  Lieberman,  33  Ohio  St.  77, 

pp.  3.55,  407,  409. 
Arnisby  v.  People,  2  Thomp.  &  C.  167, 

p.  173. 
Arnold  v.  Arnold,  20  Iowa,  273.  u.  320. 
Arnold  v.  State,  9  Tex.  App.  435;  s.  c,  11 

Reporter,  175,  p.  233. 
Arthur  v.  State,  3  Tex.  403,  pp.  328,  329. 
Asbury  Ins.  Co.  v.  Warren,  66  Me.  523, 

p.  204. 
Ash  V.  State,  56  Ga.  583,  p.  346. 
Ashburn  v.  State,  15  Ga.  246,  p.  650. 
Atchison  etc.  K.  Co.  v.  Franklin,  23  Kan. 

75, p.  275. 
Atkins  V.  State,  16  Ark.  568,  pp.  210,  471, 

481,  502.  — . 

Atkins  V.  State,  60  Ala.  45,  pp.  230.  322.  ] 
Atkinson  v.  Allen,  12  Vt.  619,  p.  195. 
Atlas  Mining  Co.  v.  Johnston,  23  Mich. 

36,  pp.  178,  275,  276,  277. 
Atlee  V.  Shaw,  4  Yeates,  236,  p.  94. 
Atty.   Gen.    v.   Goodman,    8  Price,  220, 

p.  13. 
Atty.  Gen.  v.  Parsons,  2  Mee.  &  W.  23, 

p.  93. 
Atwood  V.  Weems,  99  U.  S.  183,  pp.  23, 

257,  634. 
Audrey  v.  Suttrel.  Cro.  Eliz.  23,  p.  281. 
Austen  v.  Baker,  12  Mod.  260,  p.  451. 
Austin  V.  Cox,  60  Ga.  520,  p.  189. 


(^) 


XTIIJ 


TAHLK  OF  CASES  CITED. 


Austin  V.  Mate,  42  Tex.  355,  p.  43."i. 
-Xiizans  Case,  2  Mart.  (La.)  \25,  p.  -281. 
-\ylett  V.  Jewel,  2  W.  HI.   12<)1),  pp.  509, 

.114,547. 
Aylett   T.   K'ox,  3  Hio.   P.  C.  .V29;  s.  c,  V> 

Ml.  Jt  Kl.  247  n.,  pp.  728,  731. 
Ayios  V.  IJiuT,  5  .1.  J.  Marsl).  2S«,  p.  (i. 
-Ayres  v.  Motcalfo,  .J'.i  111.  .•!()7.  p.  27.'i. 


B. 


TJabcocl^  V.  People,  15  Hun,  347,  p.  320. 
Haci}<alui)o  v.  Com.,  33  Giatt.  ^■07.  p.  3. 
Bailey  v.  Mac-aulav,  13  (^  B.  815,  p.  331. 
Uailev  v.  State,  3!)  Ind.  438,  pp.  G47,  TiS, 

72it,  731.  733. 
Uailev  V.   Trumbull,  31   CDnn.  .">81,  pp. 

1S.3,  30:!. 
Baiid  V.  .state,  38  Tex.  5!)9,  p.  326. 
Baker  v.   Harris,  1   Winst.  {S.   C.)   277, 

pp.  131,2.3(5,268,270. 
Baker  v.  Simmons,  21  Barb.  198,  pp.  428, 

432. 
Kaker  v.  State,  15  Ga.  498,  p.  214. 
Baker  v.  State,  23  »Iiss.  243,  pp.  583,  629. 
Baker  v.  State,  12  Oliio  St.  214,  p.  718. 
Baker  v.  State,  3  Te:>..  .Vpp.  .V25,  jip.  28i), 

21t.5. 
Baker  v.  State,  4  Tex.  .Vpp.  223,  pp.  93, 

339. 
IJaker  v.  Steamer  Milwaukee,  14  Iowa, 

214.  p.  122. 
Balbo  V.  People,  18  Hun,  424  ;  s.  c,  aff'd 

80  X.  V.484,  pp.  202,  224,  227,  242,243. 
Baldwins  Case,  2  Tyler,  473,  p.  638. 
Bales   V.  .State,  63  Ala.  30,  pp.  224,  232, 

2.i4,  34»,  (;25. 
Ball  V.  Carley,  3  Ind.  577,  pp.  4S5,  495, 

496. 
Balsbaugh   v.  Frazer,  19  Pa.  St.  95,  p. 

1S2. 
r.aitiniore  etc.  K.  Co.  v.  Christie,  6  W. 

Va.  32.5,  p.  314. 
Barber  v.  State,  13  Fla.  675 :  s.c.,1  Green 

Cr.  L.  Kep.  723,  p,  2*5. 
Barbot's  Case,  18  How.  St.  Tr.  1223,  pp. 

229,  286. 
"Tiarbotir  v.  Archer,  3  Bibb,  8,  p.  407. 
.'Uarficld  V.  Inipson,  1  Smed.  So  M.  3i6,  p. 

317. 
'  Barger  v.  State,6  Blaekf.  188,  p.  .585. 
Barker  v.  Bell,  49  .Via.  284,  p.  Xl. 
Barker  v.  Hine,  .54  Ind.  ,542,  p.  193. 
Barklev  v.  State,  Meigs,  93,  p.  721. 
P.arlow  V.  State,  2  Blaekf.  114,  pp.  870, 

40»;,  407,  .528,  540,  .547. 
Barnes  v.  Xewton,  46  Iowa,  567,  p.  307. 
Kai-ney  v.  People,  22  111.  160,  p.  319. 
.  Barney  v.  State,  12  Smed.  &  M.  (>S,  p.  601. 
Barrett  v.  Long,  3  H.  L.  Cas.  395,  p.  141. 
Baiu-ett  V.  Long,  8  Irish  L.  331;  .'?.  c,   7 

Irish  L.  439,  p.  312. 
Barrett  v.  stone,  1  Wis.  175,  p.  376. 
Barron  v.  BaUiinore,  7  Pet.  243,  ii.  661. 
P.arroii  v.  People,  73  111.  2.56,  p.  619. 
Kartliet  v.  Kstebene,  5  La.  An.  315,  p.  87. 
Bartlett  v.  Humphreys,  Hardin,  513,  p. 

720. 
.  Bartlett  v.  State,  28  Ohio  .St.  669,  pp.  317, 
.329. 
Barton  v.  Holmes,  16  Iowa,  252,  pp.  510, 

518,  .5.53. 
P.arton   v.  Quinn,  Batty  (Irish  Rep.)  .552, 

p.  303. 
P.artow  V.  Murrv,  2  \.  .1.  L.  97,  p.  70. 
Bass  V.  Irwin,  49  Ga.  436,  p.  393. 
.  Bass  V.  State,  37  Ala.  469,  p.  619. 
.  Bass  V.  State,  6  Baxt.  579,  p.  327. 
.  IJa-ssett  V.  Salisbury  Man.  Co.,  28  X.  H. 

4.38,  p.  423. 


J{ate  V.  Lewis,  1  J.  .1.  Marsh.  316,  p.  317. 
Bates  V.  State,  19  Tex.  122,  pp.  77.  99,  298.. 
Bateson  v.  Clark,  37  Mo.  31,  p.  .5:J4. 
Battle  V.  State,  54  Ala.  93,  pp.  619,  7*5. 
Baweom  v.  State,  41  Tex.  189,  p.  328. 
Baxter  v.  People,  8  III.  368,  pp.  2il,  394, 

.527, 558. 
Baxter  v.  Putney,  37  How.  Pr.  140,  p.  10. 
Baylis  v.  Lucas,  Cowp.  112,  p.  111. 
BavouJDU  V.  Criswell,5  Mart.  (.\.  S.)  2.>2, 

J).  88. 
Beal  V.  State,  15  Ind.  378,  p.  6.58. 
Beall  V.  Campbell,   1   How.   (Miss.)   24, 

p.  .327. 
Beam  v.  Link,  27  Mo.  261.  pp.  745,  747. 
Beamisli  v.  State.  6  Baxt.  .530,  p.  37. 
Beasley  v.  People,  89  111.  .571,  pp.  .578,  646. 
Beanchaini)  v.  State,  6  Blackl.  299,  pj). 

291,  296,  729. 
Beck  V.  State,  20  Ohio  St.  228,  pp.  .341,  342. 
Bedford  v.  State,  2  Swan,  72,  p.  725. 
Beebe  v.  People,  5  Hill,  32,  p.  394. 
Beekinan    v.    Wright,    11     Johns.    442, 

p.  379. 
Beers  v.  Beers,  4  Conn.  535,  p.  157. 
Beery  V.  United  States,  2  Colo.  186,  ]).  52. 
Bt'hler  v   State,  22  Ind.  345,  p.  622. 
Bejarano  v.  State,  6  Tex.   App.  2(>5,  pp. 

99,  308. 
Bel  V.  State,  44  Ind.  393,  p.  7. 
Bell  V.  Howard,  4  Litt.  117,  p.  .303. 
Bell  V.  People,  2  111.  397.  p.  729. 
Bell  V.  State,  44  Ala.,  393,  p.  220. 
Bell  V.  State,  59  Ala.  55,  p.  101. 
Bell  V.  State,  cited  51  Ala.  30,  p.  29(i. 
Bell  V.  State,  10  Ark.  5:56,  p.  317. 
Bell  V.  State,  42  Ind.  335,  pp.  612,  647.  7.50. 
Bellair  v.  State,  6  Blaekf.  104,  p.  615. 
Bellows  V.  Gallup,  Kirbv,  166,  p.  303. 
Bellows  V.  Weeks,  41  Vt.'SOO,  p,  278. 
Belt  V.  People,  97  111.  461.  p.  301. 
Beneway  v.  Conyne,  3  Chand.  214. 
Benner  v.  Porter,  9  How.  235,  p,  51. 
Bennett  v.  Baker,  1  Humph.  399,  pp.  510, 

515,  543,  .552. 
Bennett  v.  Com..  8  I^eigh,  745,  pp.  372, 

379. 
Bennett  v.  Howard,  3  Day,  219,  pp.  407, 

408. 
Bennett  v.  Matthews,  40  How.   Pr.  428, 

pp.323,  336,  338, :i43. 
Bennett  v.  State,  8  Humph.  118,  p.  734. 
Bennett  v.  State,  3  Ind.  167,  p.  .539. 
Bennett  v.  State,  27  Tex.  701,  p.  652. 
Bennett  v.  State,  Mart.  &  Yerg.  133,  pi>. 

67,  603. 
Benson  v.  Clark,  1   Cowen,  258,  pp.  420, 

421. 
Benson  v.  Fish,  6  ^le.  141,  pp.  4S1,  485. 
Bentlev  v.  Fleming,  1  Com.   B.  479,  p. 

.540." 
Bentun  v   State,  30  Ark.  328,  pp.  102,  308. 
Berriau   v.  State,  22  N.  J.  L.  9,  pp.  729, 

730. 
Berrj'  v.  Kcnuev,  5  B.  Mon.  122,  p.  5. 
Berry  v.  State,  63  Ala.  126,  pp.  578,620. 
Berry  v.  State,   10  Ga.  511,  pp.  353,  357, 

387,  394,  400. 
Berry  v.AV alien,  1  Overton,  187,  p.  213. 
Bersch  v.  State,  13  Ind.  434,  pp.  485,  497. 
Bibb,  V.  Reid,  3  Ala.  88,  p.  298. 
Biddle's  Case  cited,  16  Conn.  464,  p.  694. 
Biggs  V.  Barry,  2  Curt.  C.  C.  259,    pp. 

.521,  546, 
Bilanski  v.  State,  3  Minn.  427,  pp.  354,  357, 

361,  387. 
Bill  V.  State,  29  Ala.  34,  pp.  70,  98,  99,  .300, 

336. 
Billis  V.  State,  2  McCord,  12,  pp.  188,  339. 
Bingham  v.  Foster,  37  Iowa,  3:19,  p.  5.55. 


TABLE  OF  CASES  CITED. 


XLV 


]iireliai-(l  v.   Booth,  4   Wis.  G7,   pp-  311, 

513,  514,  515. 
Bird  V.  State,  14  Ga.  4:?.  pp.  67,  HI. 
Bird  V.  State,  50  Ga.  585,  ]).  l-r.i. 
Bird  V.  State,  53  Ga.  602,  p.  732. 
Birdsong-  v.  State,  47  Ala.  68,  pp.  176,  3()S. 
Bishop  of  N.  V.  Earl  of  Kent,  Trin.  T.,  14 

Hen.  VII.,  c.  2i),  p.  350. 
Bishop  V.  State,  9  Ga.  121,  pp.  225,  264, 

.540. 
Bissell  v.Kyan,  23  111.  566,  pp.  193,  278. 
r.ivens  v.  State,  11  Ark.  455,  pj).  317,  328. 
lii.xlje  V.  State,  6  Ohio,  86   pp.  151,  153. 
Bhuk  V.  State,  9  Tex.  App.  328,  p.  331. 
Black  V.  State,  42  Tex.   377,  pp.  216,  236, 

279. 
Blackamoor's  Case,  8  Coke  Rep.  324,  p. 

331. 
Blackburn  v.  Hays,  4  Coldvv.  227,  p.  155. 
Blair  v.  State,  .52  Ala.  3i3,  p.  .328. 
Blake  v.  Blossom,  15  Me.  394,  p.  392. 
Blake  v.  Millspaugh,  1  Johns.  3.6,  pp. 

22t»,  234. 
Blalock  V.  Phillips,  38  Ga.  216,  p.  449. 
Blanehard   v.  Brown,  1  VV^all.  Jr.,  309,  p. 

150. 
Blemer  v.  People,  76  111.  265,  r.  78. 
Blevins  v.  State,  Meifi:s,  82,  p.  73  . 
Blewett  V.  Brainard,  1  Stra.  70,  p.  282. 
Bloodworth  v.  State,  6  Baxt.  614,  p.  340. 
Bloom  V.  State,  20  Ga.  443,  pp.  32,  37. 
Bloomer  v.  State,  3  Sneed,  66,  p.  693. 
Bloxam  V.  Brown,  3  Taunt.  470,  p.  14. 
Boardman  v.  Wood,  3  Vt.  570,  pp.  214, 

278. 
Bodjce  V.  Foss,  39  N.  H.  406,  pp.  71,  323. 
Bodkin  v.  State,  20  lud.  281,  pp.  730,  735, 

736. 
Boetge  V.  Banda,  22  Tex.  105,  p.  544. 
Boggs  V.  State,  45  Ala.  30,  p.  176. 
Boileau  v.  Life  lus.  Co.   9   Phila.,  218,  ]). 

234. 
Boland  V.    Greenville,  etc.   R.    Co.,   12 

Rich.  L.  868.  p.  339. 
Boles  V.  State,  24  Miss.  445,  pp.  71,  300. 
Boles  V. -tate,   13  Smed.  &  M.  398,  pp. 

277,  299,  369. 
Bond  V.  State,  23  Ohio  St.  ,349,  p.  12. 
Bond  V.  State,  Mart.  &  Yerg.  143,  p,  729. 
Bone  V.  McGinley,  7  How.    (Miss.;  671, 

p.  6. 
Booby  V.  State,  4  Yerg-.  Ill,  i)p.  305,  341, 

419,  433,435,  551. 
Boon    V.   State,    1  Ga.  CIS,  pp.  157,  214, 

215,  223,  229,  249. 
Boose  V.  State,  10  Ohio  St.  577,  p.  329 
Boot  V.  Com.  16  Graft.  519,  p\).  38,  571. 
I'.orst  V.  Beecker,  6  Johns.  332,  p.  177. 
Bosley  v.  Chesapeake  Ins.  Co.,  3  Gill  & 

J.  473, 11.,  p.  542. 
Bosley  v.  Farquar,  2  Blackf.  61,  p.  388. 
Bo.ston  V.  Tileston,  11  Mass.  468,  p.  185. 
Boston,  etc.,  B.  Co.  v.  Dana,  1  Gray,   83, 

pp.  514,  515,  540. 
Botsford  V.  Yates,  25  Ark.  282,  p.  326. 
Boulov.  State,  51  Ala.   19,  pp.  608,   610, 

611. 
Bowe  V.  State,  25  Ind.  4.5,  p.  732. 
Boweii  V.  State,  3  Tex.  App.  617,  p.  548. 
Bowler  V.  Washington,  62  Me.  302,  p.  520. 
Bowman,  lie.,  7  Mo.  App.  568,  p.  346. 
Bowman  v.  State,  41  Tex.  417,  pp.   109, 

194,  309. 
Bowne  V.  Witt,  19  Wend.  475,  p.  175. 
Box  V.  State,  34  iMiss.  614,  p.  642. 
Boyd  V.  State,  6  Coldw.  1,  p.  583. 
Boyd  V.  State,  17  Ga.  194,  p.  324. 
Boyce  V.  California  Stage  Co.,  25  Cal. 

460, p.  516. 
Boyle  V.  People,  4  Colo.  176,  p.  192. 


Boyington  v.  State,  2  Port.   lUO,   i)p.   '^4 

605. 
Bovnton  V.  Trumbull,  45  X.   H.   408,  pn 

509,  513. 
Brackett  v.  State,  2  Tyler,  152,  p.  56S. 
Bradbury  v.  Baillie,  TAUen  (N.  B.),  427, 

p.  13. 
Bradbury  v.  Cony,  62  Me.  223,  pti.  406, 

440,  520. 
Bradford  v.  State,   15  Ind.   347.   pp.   175, 

216,  270,  279,  .540,  .547. 
Bradford  v.  ^tate,  4  W.  Va.  763,  p.  611. 
Bradley  v.  l>radley.  45  Ind.  67,  p.  88. 
Bradley  v.  Fisher,  13  Wall.  335,  p.  749. 
Bradshaw  v.  Hubbard,  (i  111.  390,  pp.  189_ 

304. 
Bradt  v.  Rommel,  26  Minn.  505,  p.  ,540, 
Bragg  V.  People,  78  111.  328,  pp.  32,  37. 
Brake  v.  State,  4  Baxt.  361,  p.  442. 
Brakerteld  v.  state,  1  Sneed,  215,  p.  222. 
Brandin  v.  Grannis,  1  Conn.  402,  pp.  353", 

355,  359. 
Brandreth's  Case,  ,32  How.  St.  Tr.   755, 

PI).  144,  146,  283,  286,  289,  315. 
Brantley  v.  State,  13  Smed.  it  M.   468,  p_ 

619. 
Brattonv.  Bryan,  1.  A.  K.  Marsh,  212,  p,. 

339. 
Bray  v.  State,  41  Tex.  560,  p.  316. 
Brazier  v.  State,  44  Ala.  387,  pp.  6,  287. 
Brazleton  v.  State,  11  Reporter,  291,   n„. 

189. 
Breck  v.  Blanehard,  27  X.  H.  100,  p.  541.. 
Breeding  v.  State,    11  Tex.    257,  pp.  38,. 

571. 
Brennan  v.  State,  33  Tex.  266,  pp.  22,  76,. 

342,  557. 

Brewster  v.  Thompson,  1  X.  J.  L.  32,  pp.. 

540,541. 
Brewer  v.  Tyringham,  14  Pick.  19(),  p.32.. 
Briant  v.  Fowler,  7  Cow.  562,  p.  458. 
Briant  v.  Russell,  2  X.  J.  L.  107,  p.  (i. 
Bridge  v.  Eggleston,  14  Mass.  248,  p.  540., 
Briggs  V.  Byrd,  12  Ired.  L.  377,  p.  339. 
Briggs  V.  Georgia,  15  Vt.  61,  p.  358. 
Briggs  V.  Taunton,  110  Mass.  423,  p.  426,. 
Brill  V.  State,  1  Tex.   App.  572,   pp.   304,, 

340,  343. 
Brinkley  v.  State,  .54  Ga.  371,  pp.  114, 116- 
Brinkley  v.  State,  .58  Ga.  296,  pp.  346,  347.^ 
Brisbane  v.  Macomber,  56  Barb.  375,  p.. 

&5. 
Bristerv.  State,  26  Ala.  107,  pp.   1.53,  530,. 

532. 
Bristow's  Case,   15  Graft.  634,    pp.   323,^ 

343,  344. 

Brittain  v.  Allen,  2  Dev.  120,  pp.  188,  192,.. 

201. 
Britton  v.  Fox,  39  Ind.  369,  p.  393. 
Bronson  v.  Metcalf,  1  Disney,  21,  pp.  481,. 

497. 
Bronson  v.  People,  32  Mich.  34,   pp.   303,, 

323. 
Brooks  V.  Bruyn,  37  111.  392,  p.  193. 
Brothei'ton  v.  People,  75  X.   Y.   159,  pp.. 

714,  715. 
Brown  v.  Com.,  2  I  eigh,  769,  pp.  2.6,  222- 
Brown  v.  Com.,  11  Leigh,  711,  p.  19. 
Brown  v.  Com.,  73  Pa.  St.  322,  pp.  60,  120, 

613,  624. 
Brown  v.  Com.,  76  Pa.  St.  319,  pp.  579, 598,. 

667. 
Brown  v.  Esmonde,   Ir.  Rep.  4  Eq.  630,. 

pp.  117,  246. 
Brown  V.  LaCrosse  Gas  Co.,  21   Wis.   51,. 

pp.  338,  341. 
Brown  v.  McConnel,  1  Bibb,  265,  ji.  3S8. 
Brown  v.  State,  52  Ala.  345,  p.  303. 
Brown  v.  State,  28  Ga.  199,  p.  ,540. 
Brown  v.  State,  28  Ga.  439,  pp.  33S,  52S„ 
Brown  v.  State,  8  Blackf.  561,  p.  6. 


XX 


TA15LK  OF  CASES  CITED. 


Brown  v.  State,  10  Ind.  4%,  p.  G. 
IJrowii  V.  Stiite,  70  Ind.  577,  pp.  -219,  308. 
JJrowu  V.  state,  7  IliiniiJh.  l.">.i,  p.  7:i4. 
lUown  V.  State,  57  Miss.  424  ;  s.  c,  10 Cent. 

L.  J.  :57H,  pp.  175.  -IM,  :;0S,  309. 
Urown  V.  State,  is  Oliio  St.  49(>,  p.  13. 
Krown  v.  State,  10  Ark.  (i07,  pp.   617,  (>49. 
IJrown  V.  State,  12    >ik.  C23,  p.  71. 
IJrwwn  V.  Stat",  38  Tex.  482,  pp.  365,   395. 
JJrown  V.  Warner,  2  J.  J.  .Mursli.  39,  p. 

314. 
Crown  V.  Wheeler,  IS  Conn.  199,  pp.  189, 

196. 
Brown.  Ft  parte.  72  Mo.  83;  s.  c,  11  Cent. 

L.  J.  491,  p]i.  671,  •■)75,  676. 
Brown,  Kx  parte,  8  I'iik.  .50  ',  p.  32. 
Brown,  Ax  parte,  1  G.  &  J.  401,  p.  83. 
Brownell  v.  MeKwen,  5  Denio,  367,  pp. 

.541,  .542. 
Brucker  v.  State,  16  Wis.  333,  pp.  372, 

644. 
Brunskill  v.  Giles,  9  Binjr-  13,  p.  323. 
Bryan  v.  Harrison,  76  N.  (.!.  360,  p.  15.5. 
Bryan  v.  State,  4  Iowa,  349,  p.  10. 
Buclianan  v.  Reynolds,  4  W.  Va.  681,  p. 

542. 
Bnek  v.  Mallory,  24  Miss.  170,  p.  .326. 
liu'^'4  V.  State,  47  Ala.  50,  pp.  102,  328. 
Buliol  V.  Boudousiiuie,  8  Mart.    (N.  S.), 

425,  p.  46. 
Buie  V.  State,  1  Tex.   App.  4.53,   pp.  339, 

342. 
Bull  V.  Com.,  14  Gratt.  614,  p.  540. 
Bull  V.  I'inkus,  5  Seott,  6.7,  p.  14. 
Bullard  v.  Spoor,  2  Cow.  430,  p.  278. 
Bullard  v.  State,  38  Tex.  504,  pp.  5,   11, 

300. 
Bulliiierv.  People,  95  111.  395,   pp.  311, 

417. 
Buntiv.  Croul,  10  Johns.  2,39,    pp.    423, 

427. 
Bunn  V.  Hoyt,  3  Johns.  2.55,  pp.  391,  393. 
Burden  v.  People,  26  Mich.  162,  p.  193. 
Burdick  v.  Hunt,  43  Ind.  381,  pp.  740,  745. 
Burdine  v.  Grand  Lodge,  37   Ala.  478,  p. 

193 
Burfey  v.  State,  3  Tex.  App.  519,  pp.   75, 

321. 
Bur^iess  v.  Com.,  2  Va.  Cas.  487,  p.  714. 
Burj^ess  v.  Langley,  5  Man.  &  Gr.  722,  pp. 

514,  515,543. 
Burk  V.  Clark,S  Fla.  9,  p.  317. 
Bnrk  v.  State,  27  Ind.  430,  p.  218. 
Burk  V.  State,  2  liar.  &  J.  426,  p.  90. 
Burley  v.  State,  1  Nel).  3&5,  p.  .580. 
Burlingame  v.  Burlinganie,  IS  Wis.  285, 

p.  46. 
Burnham  v.  Hatfield,  5  Blackf.  21,  pp. 

740,  745,  746. 
Burns  v.  Paine,  8  Tex.  1.59,  pp.  353,  540. 
Buron  v.  Denman,  1  Kxch.  769,  p.  93. 
Burr,  Trial  of,  cited  pp.  204,  213,  218,  221, 

224,  229,  23J,  235,  236,  265,  38i5,  .589,  698. 
Burrell  v.  State,  18  Tex.  713.  pp.  20S,  308. 
Burrill  v.  Phillips,  1  Gall.  360,  p.  3.55. 
Burroughs  v.  State,  17  Fla.  643,  p.  619. 
Burrow  v.  State,  12  Ark.  65,  p.  328. 
Burrows  V.  Unwin,  3  Car.  &  P.    310,    pp. 

427,  492. 
Burt  V.  Panjaud,  99  U.  S.  180,  pp.  23,  257, 

308,  624. 
Burtine  v.  State,  18  Ga.  .534,  p.  407. 
Burton  v.  Wilkes,  66  N.  C.  604,  p.  484. 
Bush  V.  I'ring,  9  Uow  1.  ISO,  p.  14. 
Bush  V.  State,  52  Ala.  13,  p.  329. 
Busick  V.  State,  19  Ohio,  198,  p.  :i42. 
Butt  V.  Tuthill,  10  Iowa,  .585,  pp.  .540,  554. 
Byam  v.  State,  17  Wis.  145,  |..  733. 
Byans  v.  Mt.  Vernon,  77  III.  467,  pp.  339, 

342. 


Byrd  v.  State,  1  How.  (.Miss.),  163,  pp.  6, 

20,  22,  279,  626,  729. 
Bvrne  v.  State,  12  Wis.  519,  pp.  618,  619. 


Cable  V.  State,  8  Blackf.  .531,  p.  247. 
Cacluite  V.  State,  50  Miss.  165,   pp.   704, 

705,  734,  736. 
Cain  V.  Cain,  1  B.  Mon.  213,  pp.  ."40,  540, 

550. 
Cain  V.  Ingham,  7  Cow.  478,  pp.  181,  338, 

343, 
Caldwell  v.  Caldwell,  Smith,  (N.  H.)  239, 

1).  340. 
Caldwell  v.  Irvine,  4  J.  J.  Marsh,  108,  p. 

318. 
Caldwell  v.  State,  34  Ga.  10,  p.  1.52. 
Caldwell  v.  State,  41  Tex.  86,  pp.  176,  210, 

2(;5. 
Calhoun  v.  State,  4  Humph.  477,  pp.  340, 

734. 
Calhoun  v.  Williams,  32  Graft.  19,  p.  175. 
Callender's  Case,  Whart.  St.  Tr.  688,  pp. 

21,  234. 
Caltliorp  V.  Xewton,  Cro.  Jac.  647,  p.  75. 
Campbell  V.  Com.,  84  Pa.  St.  187,  p.  270. 
Campbell  v.  Miller,  1  Mart.  (N.  S.)  514, 

p.  540. 
Campbell  v.  Skldmore.  1  Tex.  475,  p.  557. 
Campbell  v.  State,  48  Ga.  3.53,  pp.  24,  60, 

277. 
Campbell  v.  State,  8  Tex.  App.  84,  p.  716. 
Campbell  v.  Strong,  Hemp.  C.  C.  265,  p. 

321. 
Canceml  v.  People,  16  N.  Y.  50i,  pp.  228, 

279,  284,  285. 
Canceml  v.  People,  18  N.  Y.  128,  pp.  6, 

7.8. 
Candler  v.  Hammond,  23  Ga.  493,  p.  317. 
Cannon  v.  Alsbury,  1  A.  K.  Marsh,  76,  p. 

527. 
Cannon  v.  Bullock,  26  Ga.  431,  p.  .528. 
Cannon  v.  State,  57  Miss.  147,  p.  342. 
Cannon  v.  State,  3  Tex.  32,  p.  3.57. 
Cannon  v.  State,  5  Tex.  App.  34,  p.  326. 
Cantwell  v.  State,  18  Ohio  St.  417,  p.  365. 
Capehart  v.  Stewart,  80  N.  C.  101,  p.  89. 
Caj)erton  v.  Xickel,  4  West  Va.  173,  p. 

131. 
Caresv  v.  Howard,  1  Root,  323,  pp.  .303, 

341. 
Cargen  v.  People,  39  Mich.  549,  pp.  200, 

231. 
Carlisle  v.  Sheldon,  35  Vt.  440,  pp.  454, 

464,  532. 
Carman  v.  Xewell,  1  Den.  25,  p.  181. 
Carmarthen  v.  Evans,  10  Mee.  &  W.  274, 

pp.  246,  248. 
Carmichael  v.  Howell,  2  X.  J.  L.  376,  p. 

71. 
Carnaghan  v.  Ward,  8  Xev.  30,  pp.  370, 

440. 
Carnal  v  People.  1  Park.  Cr.  R.  272,  pp. 

247,  255,  284. 
Carne  v.  Xicoll,  3  Dowl.  115,  p.  82. 
Carpenter  v.  Dame,  10  Ind.  125,  p.  292. 
Carpenter  v.  People,  64  X.  Y.  483,  pp. 

115,  593. 
Carpenter  v.  State,  4  How.  (Miss.)  163, 

p.  6. 
(Jarroll  v.  State,  3  Humph.  315,  p.  309. 
Carroll  v.  State,  5  Xeb.  32,  pp.  227,  243. 
Car.-ion  v.  State,  .50  Ala.  134,  pp.  223,  224. 
Carson  v.  Watson,  4  Phila.  88,  p.  472. 
Carter  v.  State,  56  Ga.  463,  pp.  114,  204. 
Carter  v.  State,  8  Tex.  App.  372.  p.  30-j. 
Cary  v.  Silcox,  5  Ifid.  370,  p.  39t. 
Case  of  a  Jur>nian,  12  East.  231,  y>.  332. 


TABLE  OF  CASES  CITED. 


XXI 


■Castanedo  v.  State,  7  Tex.  App.  582,  p. 

109. 
Castro  V.  Gill,  5  Cal.  40,  p,  530. 
Cato  V.  State,  i»  Fla.  1G3,  p.  317. 
•Cavanah  v.  State,  56  Mi!^s.  299,  pp.  SO,  89. 
Caw  V.  People,  3  Neb.  357,  pp.  354,  387, 

398,  407. 
Cawiey  v.  Knowles,  16  C.  B.  (X.  S.)  107, 

p.  14. 
Caykendall,  Ex  parte,  6  Cow.  53,  pp.  541, 

542 
Central  R.  Co.  v.  Mitchell,  63  Ga.  173,  p. 

197. 
Chadbourn  v.  Franklin,  5  Gray,  312,  p. 

540. 
Chalmers  v.  AVliittemore,  22  3Iinn.  305, 

p.  445. 
Chance  v.   Indianapolis  etc.  R.   Co.  32 

Ind.  472,  p.  474. 
Chandler  v.  Barker,  2  Harr.  (Del.)  387, 

pp.  510,  514. 
Chaney  v.  State,  31  Ala.  342,  p.  98. 
Chajinian  v.  Macutchin,  1  Craw.  &  Dix. 

(Irish,)  Cir.  121,  p.  111. 
Chapman  v.  Welles,  Kirby,  132,  p.  338. 
Chappel  V.  State,  8  Yerg.  166,  pp.  734,  735. 
Charnoek's  Case,  3  Salk.  81 ;  s.  c.  Holt, 

133,  p.  1.50 ;  12  How.  St.  Ti-.  1378,  p.  151. 
Chase  v.  Jennings,  38  Me.  44,  p.  181. 
Chase  v.   People,  40  HI.  352,  pp.  38,  279, 

338,  342,  345,  346. 
Chase  v.  State,  20  N.  J.  L.  218,  pp.  628, 

631. 
Chase  v.  State,  46  Miss.  683,  pp.  274,  325. 
Chase,  Trial  of,  cited  on  p.  213. 
Cheek  v.  State,  35  Ind.  4'.t2,  p.  490. 
Cheney  v.  Holyate.  Brayt.  171,  pp.  510, 

513,  514,  5  5,  .545. 
Cherry  v.  State,  6  Fla.  679,  pp.  653,  655, 

703,  717,  735,  741. 
Cherry  v.  Sweney,  1  Cranch  C.  C.  530, 

pp   433.  540. 
Chesapeake  etc.  11.  Co.  v.  Patton,  9  W. 

Va.  648,  p.  .321. 
Chews  V.  Driver,  1  N.  J.  L.  166,  p.  548. 
Chicago  V.  Dermody,  61  111.  431,  ]).  415. 
■Chicago  V.  Rogers,  61  111.  188,  p.  393. 
Chicago  etc.  R.  Co.  v.  Adler,  56  111.  345, 

pp.  205,  206,  263. 
Chicago  etc.  R.  Co  v.  Bnttolf,  66  111  347, 

pp.  206,  263. 
■Childress  v.   Ford,  10  Smsd.  &  M.  25,  p. 

342. 
Chri-stie  v.  State,  44  Ind.  408,  p.  193. 
Christie  v.  Richardson,  10  Mee.  &  W.  688, 

p.  15. 
Christine  v.  Whitehill,  16  Serg.  &  R.  98. 

p.  476. 
Christy  v.  Myers,  21  Mo.  112,  p.  534. 
Chouteau  v.  Pierre,  9  Mo.  3,  p.  176. 
Churchill  v.  Churchill,  12  Vt.  661,  p.  184. 
Cilley  V.  Bartlett,  19  N .  H.  312,  pp.  466, 

440. 
Cire  V.  Rightor,  11  La.  An.  140,  pp.  540, 

544. 
Citizen's  Bank  v.  Strauss,  26  La.  An.  736, 

pp.  24,  277,  299. 
Claggett  V.  Force,  1  Dana,  429,  p.  314. 
Clandinan   v.  Dickson,  8  Up.  Can.  Q.  B. 

281,  p.  12. 
Clare  v.  State,  30  Md.  163,  pp.  617,  623. 
Clarges,  Jix  parte,  1  Y.  &  J.  401,  pp.  82, 83. 
■Clark  V.  Carter,  12  Ga.  500,  pp.  540,  542. 
Clark  V.  Collins,  15  N.  J.  L.  473,  pp.  321, 

328. 
Clark  V.  Davis,  7  Tex.  .556,  pp.  325,  326. 
Clark  V.  Read,  5  N.  J.  L.  486,  p.  541. 
Clark  V.  Saline  Co.,  9  Keb.  516,  p.  46. 
<:iark  v.  State,  1  Ind.  253,  p.  729. 
■Clark  V.  Van  Vrancken,  20  Barb.  278,  pp. 

248.  339. 


Clark  V.  Whitaker,  18  Conn.  543,  pp.  481> 

485,  497. 
Clarke  v.  Good,  6  J.  J.  Marsh.  637,  p.  282. 
Clarke  V.  Territory,  1  Wash.   (Terr.)  82, 

p.  338. 
Claussen  v.  La  Franz,  1  Iowa,  226,  p. 

121. 
Cleage  v.  Hyden,  6  Heisk.  73,  p.  188. 
Clem  V.  State,  33  lud.  418,  pp.  216,  .347, 

585. 
Cleveland  etc.  R.  Co.  v.  Stanley,  7  Ohio 

St.  155,  p.  150. 
Clifton  v.  State,  53  Ga.  241,  p.  299. 
Cline  v.  Bray,  1  Oreg.  89,  p.  .541. 
Clingan  V.  Railroad,  2  Lea.  (Tenn.)  726, 

p.  16. 
Clinton  v.  Englebrecht,  13  Wall.  4154,  pp. 

51,  52,  303,  619. 
Clore's  Case,  8  Graft.  606,  pp.  208,220,  223, 

243,  279. 
Clough  V.  State,  7  Neb.  320,  pp.  87,  304, 

305,  324,  340,  312. 
Cluck  V.  State,  40  Ind.  263,  p.  216. 
Cluggage  V.  Swan,  4  Binn.  150,  pp.  514, 

516,  540. 
Cluui  V.  Smith,  5  Hill,  560,  p.  ,543. 
Clyncard's  Case,  Cro.  Eliz.  654,  pp.  631, 

"  644. 
Coalheaver's  Case,  1  Leach  Cr.  L.  76,  p. 

141. 
Cochlin  V.  People,  93  111.  410;  s.  c.  10  Re- 
porter, 422,  pp.  510,  513. 
Cochran  v.  State,  62  Ga.  731,  p.  305. 
Cochran  v.  State,  7  Humph.  544,  p.  380. 
Cochran  v.  Street,  1  Wash.  (Va.)  79,  pp. 

540,  544. 
Cock  V.  State,  8  Tex.  App.  659,  p.  ,309. 
Cody  V.  State,  3  How.  (Miss.)  27,  pp.  342, 

589,619.  647,731,732 
Coffin  V.  Gephart.  18  Iowa,  256,  p.  481. 
Cogan  V.  Ebden,  1  Burr.  383,  pp.  545,  546. 
Cogswell  V.  State,  49  Ga.  103,  pp.  527,  528, 

,5.58,  567. 
Cohron  v.  State,  20  Ga.  753,  pp.  339,  407, 

443. 
Coker  v.  Hayes,  16  Fla.  .368,  pp.  .540,  542. 
Coker  v.  State,  20  Ark.  53.  pp.  354,  370, 

380,  400,  .538. 
Coker  v.  State,  7  Tex.  App.  83,  p.  109. 
Cole  V.  Perry,  6  Cow.  584,  p.  324. 
Cole  V.  Swan,  4  G.  Greene,  32,  pp.  320, 

428,  431,  549. 
Coleman  v.  Hagerman,  cited  6  Cow.  564, 

p.  223. 
Coleman  v  Moody,  4  Hen.  &  M.  1,  pp. 

454,  458,  526. 
Coleman  v.  State,  17  Fla.  208,  p.  370. 
Coleman  v.  State,  28  Ga.  78,  p.  540. 
Collier  v.  State,  20  Ark.  36,  pp.  339,  342, 

537,  639. 
Co'lier  v.  State,  2  Stew.  388,  pp.  6»8,  729. 
Collins  V.  Barding,  65  Mo.  4"6,  p.  534. 
Collins  V.  Frost,  54  Ind.  242,  p.  471. 
Collins  V.  People,  39  111.  233,  p.  717. 
Collins  V.  People.  48  111.  145,  p.  228. 
Collins  V.  State,  5  Tex.  App.  39,  pp.  328, 

329. 
Colt  V.  Eves,  12  Conn.  243,  pp.  46,  157. 
Colt  V.  People,  1  Park.  Cr.  R.  611,  pp.  90, 

98. 
Colorado  Springs  v.  Hewitt,  2  Colo.  275, 

p.  318. 
Columbus  V.   Goetchius,  7  Ga.  139,  pp. 

185,  346. 
Combs  V.  Slaughter,  Hard.  (Ky.)  62,  p. 

131. 
Commander  V.  State,  60  Ala.  1,  pp.  131, 

203,  230,  328. 
Com.  V.  Abbott,  13  Met.  120,  p.  234. 
Com.  V.  Addis,  1  Bro.  (Penn.)  285,  p.  147. 
Com.  V.  Austin,  7  Gray,  51,  p.  235. 


XXII 


TABLE  OF  CASES  CITED. 


Com.  V.  Raiinoii,   ".i7    Mass.    -'14,    pj).  ii.")l, 

652,  C5:5. 
Coin.  V.  liiirtilscjii,  8.")  I'a.  St.  IJS-.',  p.  (>13. 
(.'oui.  V.  Ik'tton,  ,">  Ciisli.  4-.'7,  p.  70!'. 
Com.  V.  liostoii,  otc.    K.    Co.,;)  CusI).  "-'.i, 

pp.  1S7,  1S8. 
Com.  V.  ISrown,  IJl  .Ma.ss.un.  p.  .V.M>. 
CoTii.  V.  IJiirclier,  2    Uob.    (\a.)  »2i>,  pp. 

174,  6:i:;. 
Coin.  V.  Burton,  4  l^eiffli,  tU.i,  p.  114:!. 
Coin.  V.  IJuz/.ell,  l(i  Pick.  153,  pp.  :U,  2)5, 

262. 
Com.  V.  Bybee,  5  Dana,  249,  pj).  71^,  721. 
Com.  V.  Clvison,  .•)  l'liila.219,  p.  81. 
Com.  V.  Charter,  2   \'a.  Cas.  ai9,   pp.  174, 

63;5. 
Com.  V.  Cawood,  2  \a.  Ca.'S.  527,  pp.  734, 

735,  704. 
Com.  V.  Certain    Into.xic-atiiif?    I-iqiiors, 

107  -Mass.  216,  j).  166. 
Com.  V.  Chauncfv,  2  A.slim.  IK),   pp.   72, 

610,  631. 
Com.  V.  Cherry,  2   N'a.   Cas.  20,   pp.  603, 

631. 
Com.  V.  Clark,  2  I5ro.  (Peun.)  32.!,  p)).  .589, 

5'.»2. 
Com.  V.  Cook,  6  Serj^.  &  K.  .557,  p.  3.52. 
Com  V.  Crans,  3  I'enn.  L.   J.  449;  s.  c,  2 

Clark,  180,  pp.  (i53,  667,  668,  669,  699. 
Com.  V.  *  nnnin^'lium,  6  Gratt.  695,  pp. 

174,6:):;. 
Com.  V.  Dailey,  12  Cusli.  SO,  p  9. 
Com.  V.  Davis,  cited  in  Com.  \-.  I'aiker, 

2  Pick.  559,  p.  6;)(). 
Com.  V.  Dever,  10  J.eiffli,  685,  p.  72J. 
Com.  V.  Dorsev,   103  Ma.s.s.  412,    pp.   21, 

137. 
Com.  V.  Dorus,  lOS  Mass.  488.  p.  390. 
Com.  V.  Dove,  2  \'(i.  i  as.  29,  i)p.  720,  721. 
Com.  V.  Drew,  4  Mass.  .391,  p.  540. 
Com.  V.  Eaton,  6  Binn.  447,  p.  6:i'. 
Com.  V.  Eaton,  8  I'liila.  428,  p.  90. 
Com.  V.  Edgerly,  10  .\llen,  184,  p.  482. 
Com.  V.  Edwards,  4  Crav,  1,  pp.  723,  724, 

729. 
Com.  V.  Fisher,  7  (Jrav,  492,  pj).  729,  731, 

734. 
Com   V.  Fitzi)atrick,    3    Clark    (I'enn.), 

.520,  PI).  2.52,  279. 
Com.  V.  Flanayan,  7  Watts  &  s.  415,  pp. 

3,  22I,3:)9,  :)4l,:)4:!,  ;)47. 
C;om.  V.  Frazier,  2  Brewst.  490,  )).  292. 
Com.  V.  Gee,  6  Cush.  174,  pp.  92,  264,  283, 

662. 
Cora.  V.  Gore, 3  Dana,  474,  pp.  718,  721. 
Com.  V.  Green,  1  .\shm.  28V),  pp.  72,  74. 
Com.  V.  Gross,  1  .\slnn.  281,  pp.  206,  305. 
Com.  V.  Hailstock,2  (iratt.  .564,  pp.  200, 

221. 
Com.  V.  Hall,  4  Allen,  .591,  p.  195. 
Com.  V.  Hamilton,  15  Grav,  480,  pp.  662, 

709. 
Com.  V.  Ilaiiil,  3  Phila.  403,  p.  142, 
Com.  V.  Hartzell,  40  I'a.  .^t.  462,  p.  292. 
Com.  V.  Heller,  5  I'hila.  123,  p.  357. 
Com.  V.  HelmondoUer,  4   Gratt.  .5;;6,  p. 

174. 
Com.  V.  Hill,  11  Cnsh.  137,  p.  746. 
Com.  V.  Hughes,  11  I'hila.  4;>0,  p.  ;)47. 
Com.  V.  Hujilies,  5  Band.  6.55,  p.  2is. 
Com.  V.  Hussey,  13  Mass.  221,  pp.  169,;)41. 
Com.  V.  Hutche.'son,  1  Bibb,  :)55,  pp.  718, 

721. 
Com.  V.  Jadwin,  1  Cr.  L.  Mag.  231,  p.  (■,(J7. 
Com.  V.  .James,  99  Mass.  4;)8,  p.  152. 
Com.  \-.  .James,  1  Pick.  375,  ]).  731. 
Com.  V.  Jeffries,  7  Allen,  548,  ]).  675. 
Com.  V.  Jenkins,  Thacli.   Ciiin.  Cas.  118, 

p.  493. 
Com.  V.  Johnson,  78  Ky.  509,  p.  571. 
Com.  V.  Joliffe.  7  Watt.s,  .58.5,  pp.  147,  230. 


Com.  V.  Jone.s,  1  I.eigli,  .598,  p.  34  .. 
Com.  V.  Knai)p,  9  I'ick.  49(;,  pp.  214,  228, 

287,  655,  693,  72:). 
C(nn.  V.  Eandis,  12  I'hila.  57ri,  p.  4IH. 
Com.  V.  Leiseniiig,  lo  Keiiortei',  ;;7'',  p. 

726. 
Com.  V.  l,eno.\,  3  Brewst.  249,  ji.  22". 
Com.  V.  Lesher,  17Serg.  &  K.  155,  pj).  203, 

207,  211.  2.!6. 
Com.  V.  Eippard,  6  Serg.  *  1{.  395,  p.  120. 
Com.  \ .  Liverinore,  4   Gray,   18,  pj>.  190, 

275. 
Com.  V.  Locke,  14  I'ick.  48.5,  p.  72;;. 
Com.  V.  I.ong,  2  \a.  Cas.  318, )).  boi. 
Com.  V.  Marrow,  3  Brewst.  4(»2 ;    s.  <■.,  sub 

nam.   Com.  v.  .Marra,  8  I'hila.  440,  pp. 

147,28;;,  295,  ;;o5,  394. 
Com.  V.  McCaul,  1  \a.  Cas.  271,  pp.  ;i8(i, 

.384. 
Com.  V.  iMcElhane'y,  111  Mass.4:J9,  p.  287. 
Com.  V.  McKinney,  8  (iralt.  58'*.t,  p.  717. 
Com.  V.  Mead,  12  Gray,  167,  pi).   7;;9,  740, 

744. 
Coin.  \.  .Millci-,  4  I'hila.  210,  p.  72. 
Com.  \  .  Miller,  2  Ashiri.  61,  i)p.  'w,  7(M!. 
COiii,  \-.  .Moraii,  l;;o.Mass.  28i,  p.  5?5. 
Com.  V.  Mm  low,  !)  I'hila.  583,  p.  2:;ij. 
Com.  V.  O  Neil,(i  (irav,;!43,  p.  191. 
Com.  V.  J'arker,  2  Pick.  .549,  pp.  72,  604, 

631. 
Com.  V.  Patterson,  2   .Mete.  (K\.;  374,  p. 

718. 
Com.  V.  Pii)cr,  120  Mass.  85,   pp.  291,292. 
Com.  V.  Porter,  4  <;ray,  42;;,  j).  266. 
Com.  \ .  Piillan,  3  Bu.s'h,  47,  pp.  647,  732. 
Com.  V.  Bead,  Tliacli.  Cr.   Cas.  Isd,  pp. 

709,  731. 
Com.  V.  Jteed,  1  Gray,  472,  p.  18t;. 
Com.  V.  IJeid,  8  I'hila.  .385,  p.  226. 
Com.  V.  Bich,  14  Gray,  335,  p.  585. 
Com.  V.  Bidiiwav,  2  Ashm.  247,  pjj.  (!51  , 

667. 
Com.  V.  Bipperdon,    Litt.  Sel.   Cas.   I'.i5. 

op- 708,  710. 
Com.  V.  Bobv,   12   Pick.  496,  pp.  406,  451, 

539. 
Com.  V.  Kogers,  7  Mete.  .500,  pp.  287,  295. 
Com.  V.  B\  an,  5  Mass.  90,  pj).  186,  686. 
Com.  V.  .siiliager,  3  Clark  (Penn.),  127,  p. 

:)23. 
Com.  V.  Savers,  8  Leigh,  722,  p.  7ol. 
Com.  V.  Shaw,  7  Am.  L.  lleg.289.  p.  6. 
Com.  V.  Sherry,  Whart.  on  Horn.  481,  p. 

208. 
Com.  V.  Shields,  2  Bush,  81,  pp.  ;;7o,  372, 

;)81,  .538. 
Com.  V.  .slioles,  13  Allen,. 154,  p.  7;j3. 
Com.  V.  Simons,  6  Pliila.  167.  p.  H'^'. 
Com.  V.  Skcggs,  3  Bush,  19,  pj).  .54i',  .542. 
Com.  V.  Smith,  lo  Bush,  477.  p.  ^k>2. 
uom.v.  Smith,  9  Ma.ss.  107,  pp.  .591,604, 

<>49,  741. 
Com.  V.  Smyth.  11  Cush.  473,  pji.  »>2,  702, 

711,  730. 
Com.  V.  Spring,  5  Clark,  2;)8 ;  s.c,  1  Am. 

L.  Beg.  245,  p. :););;. 
Com.  y.  St.  Clair,  1  Gratt.  .5.56,  p.  6(1;;. 
Com.  v.  Stephen,  4  Leigh,  679,  pp.  :;21, 

■i-25. 
Com.  v.  Stone,  3  lirav,  4.53,  p.  6<j2. 
Com.  v.  Stowell,  9  Met.  772,  p.  32.'.. 
Com.  v.  Strother,  1  Va.  Cas.  18<),  p.  637. 
Com.  y.  Thiasher,  11   Gray,  57,  pp.  1S2, 

215,254,  264. 
Com.  y.  Thompson,  4  I'hila.  215,  i)p.  177, 
I  338. 

Com.  y.  Thompson,  4  Leigh,  667,   p.  607. 
Com.  y.  Twitchell,  1  Brewst.  .551,  pp.  90, 
I  148,311. 

I  Com.  y.  Twomblv,   lo   Pick.  480,  n.,   pp. 
•         20^,  ;)0I. 


TABLE  OF  CASES  CITED. 


XXlll 


CV>ni.   Virginia,   Re,   10  Cent.   L.   J.  239, 

p.  '27. 
(.•om.  V.  Waltors.  (i   Dana,  290,   pp.   709, 

71  a 
Com.  V.  Walton,  17  Pick.  40:!,  p.  31. 
•Com.  V.  Walfih,  124  Mass.  32,  pp.  113,  lUi, 

157. 
Com.  V.  Webster,  5  Cusli.   297,   pp.    198, 

204,  210,  214,  220,  287. 
t'oni.  V.  Willson,  2  Leigh,  739.  p.  (134. 
■Com.  V.  Winaemore,  I  lircwst.  3.i6 ;  .s.  c, 

2  Browst.  378,  pp.  24,  277. 
t'om.  V.  Wood,  2  Gush.  149,  p.  646. 
Com.  V.  Woods,  10  Gray,  477,  p.  700. 
Com.  V.  Worcester,  3  Pick.  462,  p.  186. 
<'orn.  V.  Wormley,  8  Gratt.  712,  p.  407. 
Com.  V.  Wright,  1  Cash  46,  pp.  510,  51S. 
<'ompt<)n  V.  Legras,  24  La.  An.  259,  p.  116. 
Conkey  v.  Northern  Bank,  6  Wis.  447,  p. 

247. 
Conkey  v.  People,  1  Abb.  App.  Dec.  418, 

pp.  620,  644. 
Conklin  v.  Hill,  2  How.  Pr.  6,  p.  510. 
Conner  v.  State,  25  Ga.  515,  p.  81. 
<;onner  v.  State,  18  Ind  428,  pp.  730,  735. 
Oonner  v.  State,   19   Ind.  98,  pp.  714,  730, 

735. 
Conner  v.  Winton,  8  Ind.  316,  p.  54(1. 
Conwav  V.  Clinton,  1  Utali,  215,  i)p.  173, 

22;,'228,  236,  .308. 
Cook  V.  Castner,  9  Cash.  2(>6,  pp.  340,  540. 
€ook  V.  Green,  6  X.  J.  L.  109,  p.  426. 
Cook  V.  Svpher,  3  Iowa,  484,  pp.  540,  5.53. 
Cook  V.  Walters.  4  Iowa,  72,  pp.  353,  388. 
Cook's  Case,  13  How.  St.  Tr.  318,  pp.  14t, 

145,  169,  229,  286,  315. 
€"ooIey  V.  State,  38  Tex.  ()36,  pp.  282,  284, 

285,289,  295. 
Cooper  V.  State,  16  Ohio  St.  328,  pp.  216, 

241. 
Copenhaven  v.  State,  14  Ga.  22,  p.  249. 
Cordova  v.  State,  6  Tex.  App.  207,  pp. 

67,  76. 
■Orrneliiis  v.  Boucher,  1  111.  12,  p.  317. 
Cornelius  v.  State,  12  Ark.   782,  pp.  301, 

538,  .i47,  729,  731. 
<'ornwell  V.  State,  Mart.  &  Yerg.  147,  pp. 

729,  735,  736. 
Cortelyou  v.  Van  Brundt,   1  Jolins.  313, 

p.  32. 
Coryell  v.  Stone,  62  Ind.  307,  pp.  270,  299. 
Coster  V.  Merest,  3  Brod.  &  Biug.  272,  pp. 

4iHi,  499. 
Costigan  v.  Cuyler,  21  N.  Y.  134,  p.  2.50. 
Costly  V.  State,  19  Ga.  614,  np.  251,  338, 

m,  347. 
Cottle  V.  Cottle,  6  Me.   140,  pp.  406,  455, 

4.56,  525. 
Cotton  V.  State,  31  Miss.  504,  pp.  228,  236. 
Cotton  V.  State,  32  Tex.  614,  p.  309. 
( 'ouch  V.  State,  63  Ala.  163,  p.  579. 
Count  Conigsmark's  Case,  9  How.    St. 

Tr.  12,  pp.  144,319. 
■Countess  of  Conway's  Case,  Skin.  229,  p. 

108. 
Countess  of  Northumberland's  Case,  2 

Mod.  182,  p.  108. 
Courtwright  v.  Strickler,  37  Iowa,  382,  p. 

188. 

Cowgill  V.  Wooden,  2  Blackf.  332,  p.  111. 
<'owles  V.  Chicago,  etc.,  R.  Co.,  32  Iowa, 

515,  pp.  540,  5.55. 
Cowper's  Case,  13  How.  St.  Tr.  1108,  pp. 

143,  144,  145. 
Cowperthwaite  V.  Jones,  2  Dall.  .55,  pp. 

.509,  510. 
Cox  V.  Haines,  2  N.  J.  L.  687,  p.  70. 
Cox  V.  People,  19  Hun.  430;  s.  c,  80  N.  Y. 

.500,  pp.  60,  121.  243,  305. 
Cox  V.  State,  7  Tex.  App.  1,  p.  366. 
'<'ox  V.  -^traisser,  62  111.  383,  p.  474. 


Coyle  V.  Gorman,  1  Phila.  326,  p.  521. 
C  abtree  v.  Hagenbaugh,  23  111.   349,  p. 

420. 
Crabtree  v.  State,  3  Sneed,  302,  pp.  509, 

510,  515,  .552. 
Craft  V.  Com.,  24  Gratt.  602,  pp.  4,  101, 

174. 
Craig  V.  Elliott,  4  Bibb,  272,  p.  303. 
Craig  V.  Fenn,  Car.  &  M.  43,  p.  188. 
Cramer  \'.  Burlington,  42  Iowa,  315,    p. 

185. 
Cranburne's  Trial,  13  How.  St.  Tr.  222,  p. 

194. 
Crane  V.  Dygert,  4  Wend.  675,  pj).    121, 

122, 127,  6'26. 
Crane  v.  Sayre,  6  N.  .J.  L.  110,  p.  ;j54. 
Cranrner  v.  Crawley,  1  N.  J.  L.  43,  p.  111. 
Cravens  v.  Gant,  2  T.  B.  Mon.  118,  p.  8. 
Crawford  v.  State,  2  Yerg.  60,  p.  .5.50. 
Creek  V.  State,  24  Ind.   J51,  pp.  462,  695, 

700,  742. 
Cregier  v.  Bunton,  2  Strob.  L.  487,  p.  157. 
Crimm  v.  Com.,  119  Mass.  326,  pp.    644, 

647. 
Crist  V.  State,  21  Ala.  137,  pp.  327,  329. 
Crittenden,  E.c  parte,  Hempst.    176,    p. 

686. 
Crocker  v.  Hoffman,  48  Ind.  207,  pp.  388, 

391. 
Crocker  v.  State,  Meigs,  127,  pp.  739,  744. 
Crockett  V.  State,  .52    Wis.  211;  s    c,  12 

Cent.  L.  J.  479,  pp.  307,  370. 
Cross  v.  Moulton,  15  Johns.  470,  p.  292. 
Cross  v.  State,  63  Ala.  40,  pp.    578,   579, 

609,  610. 
Croy  v.  State,  32  Ind.  84,  pp.  339,  342. 
Cruce  v.  State,  59  Ga.  63,  pp.  148, 150,  153. 
Cruger  v.  Hudson,  etc.,  li.  Co.,  12  N.    Y. 

190,  p.  6. 
Crumley  v.  Adkins,  12  Iowa,  363,  p.  553. 
Gumming  v.  Crawford,  88  111.    312,  pp. 

516,  537. 
Gummings  v.  Gann,  52  Pa.   St.    484,    p. 

197. 
Curley  v.  Com.,  84  Pa.   St.  151,   pp.   120, 

224,  228. 
Curran's  Case,  7  Gratt.  619,  pp.  343,  -346. 
Curry  v.  State,  4  Neb.  545,  pp.  205,  242. 
Gustiss  v.  Georgetown  Tp.Go.,  JCrancli 

C.  C.  81,  p  541. 
Cutler  v.  Cutler,  43  Vt.  660,  pp.  543,  .545. 
Cyphers  v.  People,  31  X.  Y.  373,  p.  582. 

D. 

Dakota  Ter.   v.   Tavlor,   1   Dakota  Ter. 

479, p.  493. 
Dailey  v.  Gaines,  1  Dana,  .529,  p.  180. 
Dakin's  Case,  2  Saund.  290,  p.  729. 
Dalloff  V.  Stimpson,  33  Me.  546,  p.  303. 
Dalrymple  v.  Williams,  63  X.  Y.  38i,  p. 

.544. 
Dana  v.  Tucker,  4  Johns.  487,  pp.  510, 

514,  515,  539,  541,  .543,  .547. 
Daniel  v.  Frost,  62  Ga.  697,  pp.  323,  429, 
Daniel  v.  Guy,  23  Ark.  .50,  pp.  339,  342. 
Daniel  v.  State,  56  Ga.  653,  pp.  387.  401. 
Dansby  v.  State,  34  Tex.  392,  pp.  428,  431. 
Danville  Bank   v.    Waddill,   31     Gratt. 

469,  p.  542. 
Dare  v.  Ogden,  1  X'.  J.  L.  91,  pp.  541,  544. 
Darrance  v.  Preston,  18  Iowa,  396,    p. 

433. 
Dartmouth  College    v.     Woodward,     4 

Wheat.  518,  p.  35. 
Davenport  v.  Curamings,  15  Iowa,    219, 

pp.  499,  500,  5,54. 
Davenport  Gas    Co.    v.    Davenport,    13 

Iowa,  229,  pp.  185,  270. 
Davidson  v,  Manlove,  2  Coldw.  346,  p. 

442. 


XXIV 


TABLE  OF  CASES  CITED. 


Davis  V.  Allen,  11  Pick.  40f.,  pp.    18S,  340. 
Davis  V.  Fish,  1  U.  (ircciu-,  4lH),   pp.  ;{93, 

4-20. 
Davis  V.  Hunter,  7  Alii.  i:^,  np.    17,    mo, 

•200. 
Davis  V.  I'eople,  19  111.  71,  pp.  xs,  3:iii,  34(i, 

458. 
Davis  V.  State,  54  Ala.  88,  p.  328. 
Davis  V.  State,  4<;  Ala.  bO,  p.  t>-20. 
Davis  V.  State,  15  Ohio,  7'2,  pp.   364,  37-2, 

387. 
Davis  v.  State,  25  Ohio  St.  309,  p.  74. 
Davis  v.  State, :}.')  Iml.  4%,  pp.  35(5,  4G2, 

538. 
Davis  V.  State,  3  Tex.  App.  01,  p.  307. 
Davis  V.  Slate,  "J  Tex.   App.  (>:!4,  pp.   11, 

300. 
Davis  V.  State,  43  Tex.  1S<),  p.  541. 
Davis  v.  Walker,  (iO  III.  452,  p.  2:!1. 
Davison  V.   I'eople.  iiO  111.  221,    pp.    38, 

346,  .571,  611. 
Dawson  V.  Iloran,  51  Barb.  549,  p.  10. 
Dawson  V.  People,  25  N.  Y.  399,   pp.   705, 

730,  731. 
Day  V.  Com.,  3  Gratt.  630,  p.  174. 
Dayv.  Savadne,  Ilob.  85,  p.  1*5. 
Dayharsh  v.  Enos,  5  N.  Y.  531,  pp.  323 

324. 
Dayton  v.  Church,  7  Abb.  N.  C,  367,  p 

333. 
Dayton  v.  State,  19  Ohio  St.  584,  r>.  90. 
Deacon  v.  Shreve,  22  N.  J.  L.   176,  pp 

4.9,  .541. 
Dearniond  v.  Dearmond,  10  Ind.  191,  p 

181. 

DeBarbelaben  v.  State,  50  Ala.   179,  pp 

321,3-28,329. 
Deb-.'vs  V.  MoUere,  2  Mart.  (N.  8.1,  625 

p.  75. 
Decker  v.  Matthews,  12  N.  Y.  513,  p.  500 
Dejarnette  V.  Com.  iSup.  Ct.  App.   Va 

1881),  11  Reporter,  6.53,  pp.  205,216. 
Deaiarec  v.  state,  45  Ind.  299,  p.  193. 
Deming  v.  Hurlburt,  2  D.  Clilp.  45,  p.  338. 
Den  V.  McAllister,  7  N.  J.  L.  46,  p.  .540. 
Denby's  Case,  Leach  C.  C.  580,  p.  692. 
Denman  v.  Baldwin,  3  N.  J.  L.  945,  p.  6. 
Denn  v.  Clark,  1  N.  J.  L.  446,  n.  184. 
Denn  v.  Evaul,  1  N.  J.  L.283,  pp.  94,   127. 
Denn  v.  Lecony,  1  X.  J.  L.  39,  p.  17. 
Denn  v.  Pissant,  1  N.  J.  L.  220,  p.  275, 

281. 
Denning  v.  State,  22  Ark.  131,  pp.  642,652, 

653. 
Dennison  v.  Collins,  1  Cow.  Ill,  p.  461. 
Dennison  v.  Powers,  .55  Vt.  39,  p.  428. 
Denny  v.  ilutcheson,  1  Bibb,  576,  p.  318. 
Dent  V.  Hertford,  2  Salk.  645,  p.  337. 
Dent  V.  King,  1  Ga.  200,  p.  425. 
Denton  v.  J>ewis,  15  Iowa.  301,  pp.   510, 

511. 
Deppe  V.  Chicago,  etc.,  R.  Co.,  38  Iowa, 

592,  p.  510. 
Dew  V.  McDivitt,  31  Ohio  St.  1.39;  s.  c, 

17  Am.  L.  Keg.  621,  pp.  195,  233, 251,  260, 

270. 
Dewar  v.  Spence,  2  Whart.  211,  p.  72. 
Dias  V.  State,  7  Blackf.  20,  p.  380. 
Digard  V.  Michaud,  9  Rob.  (La.),  387,  p. 

540. 
Dill  V.  State,  1  Tex.  App.  279,  p.  77. 
Dillingham  v.  Skein,  Hemp.  C.  C.  181,  p. 

329. 
Dillon  V.  Caffrey,  Iiish  R.  6  Eq.  ."563,  p.  15. 
Dilworth  v.  Com.,  12  Gratt.  689,  pp.  301, 

341. 
Dively  V.  Cedar  Falls,  21  Iowa,  565,  p. 

185. 
Diveny  v.  Elmlra,  51  X.  Y.  .507,  p.  185. 
Dixon  V.  Richards,  2  How.    tMiss.),  771, 

p.  6. 


Dixon  V.  State,  3  Iowa,  416,  p.  615. 
Dixon  V.  State,  4  G.  Greene,  :581,  pp.  328, 

715. 
Dixon  V.  State,  2  Tex.  Apn.  5:10,   pp.  2;)], 

2  17. 
Dodge  V.  People,  4  Xeb.  220,  p.  275. 
Doc  V.  .Michat-l,  16  Q.  B.  620,  p.  3:53. 
Doebler  v.  ("om.,  3  Sorg.  &  It.  237,  p.   324. 
Dole  V.  Erskine,  37  X.  H.  317,  p.  U7. 
Dolan  V.  .Etna  Ins.  Co., 22  Hun,  396,  pp. 

483,  485. 
Dolan  V.  I'eople,  64  X.  Y.  485,  pp.  45,  115, 

116,  119,  121,  608,  622,  623,  6-26,  641. 
Doncai»ler  v.  Coe,  3  Taunt.  404,  p.  13. 
Donner  v.  Palmer,  23  Cal.  40,  pp.509, 516, 

556. 
Donston  v.  State,  6  Humph.  275,  p.  5.52. 
Dooley  v.  State,  28  Ind.  239,  pp.  50s),  511. 
Dorati  v.  Shaw,  3  T.  B.  iMon.  415,  pp.  540, 

519. 
Dorman  v.  State,  56  Ind.  454,  pp.  581,60f>. 
Dorr  V.  Fenno,  12  Pick.  121,  pp.  510,  512, 

514,  540,  541,  546. 
Dotson  V.  State,  62  Ala.  141.  pp.  121,  626. 
Douglass  v.  Cent.  Land  Co.,  12  \V.  Va. 

502,  p.  329. 
Douglass  v.  Tousey,  2  Wend.  352,  pp. 

388,391,  393. 
Dovey  v.   Hobson,  2  Marsh.   154;  s.   c. 

6  i'aunt.  460,  pp.  322,  333. 
Dowdy  v.  Com.,  9  Gratt.  727,  p.  308. 
Dowling  v.  State,  5  Smed.  &  M.  564,  pp. 

21,  157,577,-581. 
Downer  v.  Baxter,  30  Vt.  467,  pp.  355,530, 

.541,. 548. 
Doyle  V.  State,  17  Ohio,  222,  pp.  603,  646. 
Drake  v.  Brauder,  8  Tex.  ;551,  p  326. 
Drake  v.  Xewtnn,  23  X.  J.  L.  Ill,  p.  452. 
Drake  v.  State,  51  Ala.  30,  pp.  283,  296. 
Drake  v.  State,  3  Tex.  App.  649,  pp.  98, 

100,  289,  295. 
Drake  and  Cochren's  Case,  6  Gratt.  665, 

pp.  735,  736. 
Dresser  v.  Xorman,  6  C.  B.  (X.  S.)  427, 

p.  12. 
Driskell  v.  Parish,  10  Law  Reporter,  395, 

pp.  2.56,261,291,  292. 
DrLskill  v.  State,  7  Ind.  .3.38,  pp.  208,  210. 
Driskill  v.  State,  45  Ala.  21,  p.  96. 
Drumniond  t.  Leslie,  5  Blackf.  453,  pp. 

514,  547. 

Duffy  v.  People,  6  Hill,  75,  p.  11. 

Duhon  V.  Landry,  15  La.  An.  591,  pp.542, 

.543. 
Duke  of  Richmond  v.  Wise,  I  Ventr.  125, 

pp.  451,  459. 
Dukes  v.  State,  14  Fla.  499,  p.  580. 
Dull  v.  People,  4  Den.  91,  p.  166. 
Dumas  V.  State,  63  Ga.  600,  pp.  176,  264, 

347. 
Dunbar  v.  Parks,  2  Tyler,  217,  p.  230. 
Dunlavev  v.  Watson,  38  Iowa,  398,  p.  555. 
Dunn  V.  IIall,8  Blackf.  32,  pp.  513,  514, 

515,  .540,  .547. 

Dunn  V.  People,  94  111.  120,  p.  32. 
Dunn  V.  State,  7  Tex.  App.  600,  p.  196. 
Dunnaway  v.  State,  3  Baxt.  206,  pp.  543, 

551,  .552. 
Dunton  v.  Montoyo.  4  Colo.  99,  p.  179. 
Durant  v.  Ashmore,  2  Rich.  L.  184,  pp. 

28fi,  288. 
Durell  V.  Mosher,  8  Johns.  445,  pp.  218, 

229. 
Dmfee  v.  Eveland,  8  Barb.  46,  pp.  497, 

500. 
Durham  v.  Hudson,  4  Ind.  501,  p.  8. 
Durr  v.  State,  53  Miss.  425,  pp.  612,  6fe7, 

726. 
Durrah  v.  State,  44  Miss.  789,  pp.  77,  102, 

tos. 


TABLE  OF  CASES  CITED. 


XXV 


Dutell  V.  State,  4  G.  Greene,  125,  pp.  615, 

617,  6-2:5,  617,  707. 
Duttoii  V.  Ti-iicy,  4  Conn.  93,  p.  321. 
Dyott  V.  Com.,  Wliart.  57,  p.  619. 
Dyson  V.  State,  26  Miss.  362,  pp.  317,  329. 


E. 


Eakin  v.  Morris  Canal  Co.,  21  X.  J.  L. 

538,  p.  4.")5. 
Eakuian  v.  Sheafer,  48  Pa.  St.  176,  p.  303. 
Early  v.  State,  1  Tex.  App.  248,  pp.  365, 

366,  367. 
Ea&on  V.  State,  6  Baxter  (Tenn.),  466, 

pp.  216,217,228,236,  241. 
Easterling  v.  State,  35  Miss.  210,  pp.  647, 

709. 
Eastman  v.  WigUt,  4  Ohio  St.  150,  pp.  304, 

358. 
Eastwood  V.  People,  3  Park.  Cr.  R.,  pp. 

364,380,381. 
Eaton  V.  Com.,  6  Binn.  447,  p.  74. 
Eberhartv.  State,  47  Ga.  .598,  p!).  106,  268. 
Eberle  v.  St.  Louis  Public  Schools,  11 

Mo.  247,  p.  185. 
Edelen  v.  Goagli,  8  Gill,  87,  p.  296. 
Edmiston  v.  Garrison,  18  Wis.  594,  p.  510. 
Edmistou  v.  Schwartz,  13  Serg.  &  11.  133, 

p.  476. 
Edmonds  v.  State,  34  Ark.  720,  p.  583. 
Edmondsou  v.  State,  41  Tex.  496,  pp.  328, 

329. 
Edrington  v.  Kiger,  4   Tex.  89.  pp.  353, 

356. 
Edwards  v.  Farrar,  2  La.  An.  307,  pp.  38, 

205,  301. 
Edwards  v.  State,  49  Ala.  33 ^,  p.  328. 
Edwards  v.  State,  .53  Ga.  428,  p.  338. 
Edwards  v.  Stale,  47  Miss.  581.  p.  329. 
Egglestou  V.  Smiley,  17  Jolins.  133,  pp. 

182',  339,  340,  343. 
Eich  V.  Taylor,  20  Minn.  378,  pp.  .355,  444. 
Eighray  v.  People,  79  N.  Y.  ,546.  p.  678. 
Elbin  V.  Wilson,  33  Md.  135,  p.  233. 
Elledge  V.  Todd,  1  Humph.  43,  pp.  510, 

515  552 
Elkins'v.  State,  1  Tex.  App.  539,  p.  115. 
Elliott  V.  Mills,  10  Ind.  36S,  pp.  .540,  .547. 
Elliott  V.  State,  73  Ind.  10,  p.  202. 
Ellis  V.  Ponton,  32  Tex.  434,  p.  407. 
Ellis,  Re,  Hempst.  10,  p.  6.52. 
Ellsworth  V.  Central  It.  Co.,  .34  N.  J.  L. 

93,  p.  520. 
Emerick  v.  Harris,  1  Binn.  416,  p.  10. 
Emerick  v.  Sloan,  IS  Iowa,  139,  pp.  88, 

279. 
P^mpson  V.  People.  78  111.  248,  p.  582. 
Engles  V.  State,  13  Ohio,  490,  pp.  364,  389. 
Epes'  Case,  5  Gratt.  676,  pp.  219,  385,  386. 
Epps  V.  State,  19  Ga.  102,  pp.  283,  347,  407. 
Erwin  v.  Bulla,  29  Ind.  95,  p.  419. 
Erwin  v.  State,  29  Ohio  St.  186,  pp.  308, 

309. 
Essex  V.  McPherson,  64  111.  349,  pp.  341, 

342. 
Estep  V.  Waterous,  45  Ind.  140,  pp.  339, 

342. 
Estcs  V.  Ricliai'dson,  6  Nev.  128,  pp.  228, 

247. 
Etheridge  v.  State.  8  Tex.  App.  133,  pp. 

179,  194,  208,  265. 
Evans  V.  Foss,  49  X.  II.  490,  pp.  355,  3SS. 
Evans  v.  State,  7  Ind.  271,  pp.  360,  361, 

378,  380,  387,  395. 
Evans  V.  State,  6  Tex.  App.  513,  p.  301. 
Evarts  V.  State,  48  Ind.  422,  p.  79. 
Everett  v.  State,  4  Tex.  App.  159,  p.  ,328. 
Everhart  v.  Hickman,  4  Bibb.  341,  p.  314. 
Exchange  Bank  v.  Tiddv,  67  X.  C.  169,  p. 

530. 


Fahnestoek  v.  State,  23  Ind.  231,  pp.  208, 

216,  228. 
Fain  v.  Goodwin,  35  Ark.  109,  pp.  516,  .5,56. 
FairchiUl  v.  Snyder,  43  Iowa,  23,  p.  4,58. 
Falmouth  v.  Roberts,  9  Mee.  &  W.  469, 

pp.  .303,  304,  330,  334. 
Famulener  v.  Anderson,  15  Ohio  St.  47.3, 

p.  194. 
Farmers'  Bank  v.  Smith,  19  Johns.  115, 

p.  257. 
Farmers    etc.    Bank,  v.    Whinfleld,    24 

Wend.  419,  pp.  469,  478,  484,  485. 
Farrar  v.  State,  2  Ohio  St.  54,  pp.  413,  416, 

547. 
Farrell  v.  Ilennesy,  21  Wis.  632,  p.  543. 
Farringtou's  Case,  Sir  T.  Jones,  222.  p. 

150. 
Fash  v.  Byrnes,  14  Abb.  Pr.  12,  p.  445. 
Fellow's  Case,  5  Me.  333,  pp.  73,  230,  340, 

465. 
Fenalty  v.  State,  12  Ark.  630,  pp.  617,  619. 
Fenwick  v.  Parker,  3  Code  Kep.  2.54,  p. 

2.52. 
Ferris  v.  People,  35  N.  Y.  125;  s.  c.  31 

How.  Pr.   14;  48  Barb.  17,  pp.  59,  109, 

120,  121. 
Fessenden  v.  Sager,  53  Me.  531,  p.  443. 
Fields  V.  State,  52  Ala.  348,  pp.  4,  70,  71. 
Fillion  v.  State,  5  Xeb.  351,  p.  270. 
Findley  v.  People,  1  Mich.  234,  pp.  586, 

608,"  644,  656. 
Fine  v.  St.  Louis  Public  Schools,  30  Mo. 

166, p.  185. 
Fines  v.  Xorton,  Cro.  Car.  278,  p.  331. 
Fink  v.  Hall,  8  Johns.  436,  pp.  373,  380. 
Finley  v.  Havden,  3  A.  K.  Marsh,  330,  p. 

339,  343. 
Finley  v.  State,  61  Ala.  201 ,  pp.  579,  580, 

620,  651. 
Finn  v.  State,  5  Ind.  400,  p.  299. 
Finnegan  v.  State,  57  Ga.  427,  pp.  603, 620. 
Fish  V.  Cantrell,  2  Heisk.  578,  pp.  541, 

.552. 
Fish  V.  Smith,  12  Ind.  563,  p.  420. 
Fisher  V.  People,  23  111.  283,  p.  420. 
Fisher  v.  Philadelphia,  4  Brewst.  395,  p. 

180. 
Fitzcox  V.  State,  52  Miss.  923,  pp.  704,  734. 
Fitzgerald  v.  People,  1  Colo.  .56,  p.  347. 
Fitzgerald  v.  State,  4  Wis.  395,  pp.  646, 

730. 
Fitzhari-is'  Case,  8  How.  St.  Tr.  436,  p. 

144. 
Fitzhugh's  Case,  Cro.  Jac.  527.  p.  631. 
Fitznatrick  v.  Harris,  16  B.  Mon.  561,  pp. 

339,341. 
Fizell  V.  State,  25  Wis.  364,  pp.  730,  733. 
Flagg  V.  AYorcester,  8  Cush.  69,  p.  188. 
Flanagan  v.  State,  46  Ala.  703,  p.  102. 
Flanders  v.  Colby,  28  X.  H.  34,  p.  .503. 
Flanders  v.  Davis,  19  X.  H.  1.39,  p.  500. 
Flanegan  v.  State,  64  Ga.  52,  p.  415. 
Flatter  v.  McDennitt,  25  Ind.  326,  p.  523. 
Fleeson  V.  Savage  S.  M.  Co.,  3  Nev.  157, 

pp.  187,  309. 
Fleming  v.  State,  11  Ind.  234,  p.  191. 
Fletcher  v.  State,  6  Humph.  249,  pp.  261, 

301,  ,552. 
Flower  V.  Livingston,  12  Mart.  681,  p.  75. 
Floyd  V.  State,  30  Ala.  511,  pp.  619,  725. 
Floyd  V.  State.  55  Ala.  61,  p.  336. 
Floyd  and  Barker's  Case,  12  Co.  Rep.  23, 

p.  748. 
Fogarty  v.  Reg.,  2  Cox  C.  C.  105,  p.  117. 
Folsoni  V.  Brawn,  25  X"^.  H.  114,  pp.  540, 

542,  543. 
Folsom  V.  JIanchester,  11  Cush.  334,  p. 

540. 
Foot  V.  Croswell,  1  Caines,  498,  p.  17. 
Foote  V.  Lawrence,  1  Stew.  483,  p.  325. 
Foote  V.  Morgan,  1  Hill,  X.  Y.  654,  p.  110 


(0 


XXVI 


TAHLi:  OF  CASES  CITKU. 


Forbes  v.  Howard,  4  K.  1.  364,  pp-  510, 

51S. 
Ford  V.  Holmes,  (>1  (Ja.  410,  j).  4.")(;. 
Ford  V.  State,  1-2  Md.  r>U,  p.  54-.'. 
Ford,  i:.f  parte,  1  (;.  &  .).  4(il,  p,  8:5. 
Korester  v.  (.Jiiard,  1  JU.  44,  p.  .">4(i. 
Forsliee    v.    Abruiiis,  2    Iowa,  571,   pp. 

■"ilT,  5."):5. 
Forsytlie  v.  State,  (!  Ohio,  19,  p.  4<i. 
Fortenberrv  v.  State,  '>.">  JSIiss.  403,  pp. 

•20S,  i". ' 
Foster  v.  I'.rooks,  G  Ga.  2S7,  p.  448. 
Foster  v.  JIawden,  2  Lev.  205,  p.  mi. 
Foster  V.  Kirbv,  31  Mo.  4'.h;,  p.  10. 
Foster  V.  MeO'HIenis,  is  Mo.  t*f,  pp.  480, 

485,  499,4!U,.')02,.")03. 
Foster  V.  Speed,  32  La.  An.  34,  p.  IKi. 
Foster  V.  State,  31  Miss.  421,  p.  733. 
Foster  V.  State,  8  Tex.  .\pp.  248,  p.  270. 
Koster  V.  N'au   Koriuan,  1    Tex.  ()37,  p. 

325. 
Foster's  Case,  13  Abb.  Pr.  (N.  S.)  372,  n., 

pp.  299,  300. 
Foster's  Will.  lie,  34  Mieh.  21,  p.  475. 
fountain  v.  AVest,  23  Iowa,  10,  p.  292. 
FouBt  V.  Coin.,  33  I'a.  St.  338,  p.  110. 
Fonts  V.  State,  7  Ohio  St.  .')71,  pp.  223, 23(;. 
Fonts  V.  State,  8  Ohio  St.  98,  p.  731. 
Fowler  V.  C'olton,  IJnrnett,  175;  s.   c,  I 

Pinnev.  331,  p.  510. 
Fowler  v."  Middlesex,  6  Allen,  92,  p.  323. 
Fowler  V.  State,  8  Baxt.  .573,  pp.  100,  311. 
Fox  V.  Jlazelton,  10  Piek.  275,  pp.  304, 

527. 
Fox  V.  Smith,  3  Cow.  23,  p.  393. 
Fox  V.  State,  5  How.  410,  p.  ROl. 
Foy  V.  Harder,  3  Keble,  805,  p.  508. 
Frank  v.  State,  39  Miss.  705.  p.  342. 
Franklin  v.  Suite,  28  Ala.  0.  p.  73(). 
Franklin  v.  State,  2  Tex.  App.  8,  p.  341. 
Fraser  v.  Jennison,  42  Mieh.  20G,  p.  1''5. 
Fra/.ier  v.  State,  23  Ohio  St.  5j1,  pp.  210, 

227. 
Frederickton  Boom  Co.  v.  McPherson, 

2  Hannav  (X.  B.),  8,  p.  197. 
Freel  v.  State,  21  Ark.  212,  p.  102. 
Freeman  v.  Arkell,  1  Car.  &  P.  135,  p  742. 
Freeman  v.  Pe()i)le,  4  Den.  9,  pp.   149, 

211,247,  2.50,  251,  200,  307,  308. 
Freneh  v.  People,  3  Park.  Cr.  R.   112,  p. 

CM. 
Freneh  v.  Smith,  4  Vt.  303,  p.  338. 
Friar  v.  State,  3  How.    (Miss.)   422,  pp. 

540,  709,  710,  732. 
Friend  v.  Hamill,  34  Md.  298,  p.  .58. 
Friery  v.  I'eople,  2  Abb.  App.  Dee.  215 ; 

s.c.,2  Keves.  244;  51  Barb.  319,  pp. 

59,  109,  120,  121,  .",08. 
Flies,  Tiial  of,  Whart.  St.  Tr.  (>  0,p.  212. 
Front  V.  Williams,  29  Ind.  18,  p.  214. 
Fry  V.  Hardy,  Sir  T.  .Jones,  83,  pp.  508, 

515. 
Frybei-gerv.  Pcikins,  60  Ind.  19,  p.  .5.34. 
Frye  v.  State,  7  Tex.  App.  94,  p.  93. 
F'ullcr  V.  Chieafjo,  ete.  K'.  Co.,  31  Iowa, 

pp.211,  510,  518,  5.55. 
Fuller  V.  State,  1  Blaekf.  63,  p.  88. 
Fulweiler  v.  St.  Louis,  01  Mo.  479,  p.  185. 
Funk  V.  Ely,  45  Pa.  bt.  444,  pp.  143,  181. 
Funkhouserv.  Pogue,  13  Ark.  295,  p.  297. 
Furman  v.  Applegate,  23  N.  J.  L.  28,  p. 

310. 
Furniss  v.  Meredith,  43  Miss.  302,  p.  320. 


(iabe  V.  State,  6  Ark.  510,  p.  718. 
(iage  V.  Wilson,  17  Me.  378,  p.  425. 
Cainey  v.  I'eople,  97  111.  270,  p.  429. 
Gale  V.  New  York  ete.  U.Co.,  13  ITun   1 
pp.  527,  541,  .547. 


Galena,  etc.  R.  Co.  v.  liaslani,  73  111.  494,. 

pp.  2(Hi,  263. 
(iallagher  v.  State,  26  M'is.  423,  p.  17. 
(iallow  ay  v.  Stale,  25  Ga.  5'.«i,  j).  268. 
Galvin  \*.  State,  6  tiold.  283,  pp.  551,  552,. 

{■.47. 
tJandoIfo  v.  State,  11  Ohio  St.  114,  p.  493. 
Garcia  v.  State,  5  Tex.  App.  :;37,  ]i.  194. 
Gardenliire  v.  State.  6  Tex.  App.  147,  pp. 

98,  297,  324. 
tiardinei-  v.  Peo))le,  6  Park.  Cr.  R.  157, 

pj).  4,  114.  110,  121,305. 
(Jardmr  v.  Lanning,  3  N.  J.  L.  6>1,  p.  188. 
Gardner  V.  People,  4  111.  83.  pp.  219,  223, 

714,  715,  716,  724,  728,  730,  734,  737. 
Gardner  v.  State,  48  Ala.  263,  p.  329. 
(iardner  V.  Turner,  9  Johns.  260,  pp.  122, 

12:!,  626. 
Garner  v.  State,  5  Yerg.  160,  p.  .301. 
Garreity  v.  Brazell,  34  Iowa,  100,  p)).  540, 

.544,  .5.55. 
(iarrison  v.  Portland,  2  Oreg.  123,  pp. 

1S5,  274,  310. 
(iarthwaite  v.  Tatum.  21  Ark.  336,  pp. 

195,  225. 
Garga  v.  State,  3  Tex.  App.  286,  p.  289. 
Gates  V.  People,  14  111.  443;  s.  c,  2  Am. 

L.  Reg.  671,  p.  20.). 
Gatlitfe  v.  Bourne,  2  Moo.  &  Rob.  loo, 

p.  93. 
Gavigan  v.  State,  .55  Miss.  .533,  p.  77. 
Gay  V.  Ardry,  14  La.  288,  p.  180. 
Geiirliart  v.  Jordan,  11  I'a.  St.  325,  p.  301. 
Gee  V.  Swann,  9  M.  &  W.  685,  p.  333. 
Genet  v.  Mitchell,  4  .John.s.  186,  p.  17. 
Georgia   K.  Co.   \.  Hart,  60  (ia.  550,  pp. 

182,  338. 
(iettwerth  v.  Teutonia  Ins.  Co.,  29  La. 

An.  30,  p.  113. 
Gholston  V.  Gholston,  81  Cia.    025,  pp. 

430, 488. 
(Jibbons  v.  People,  23  111.  518,  p.  372. 
(Jibbs  V.  Dewey,  5  Cow.  503,  p.  436. 
Gibbs  V.  State,  3  Ileisk.  72.  p.  174. 
(Jibson  V.  State,  16  Fla.  291,  p.  0. 
(iibson  V.  AVilliams,  39  Ga.  600,  ]).  .52.^. 
Gibson  v.   Wyandotte,  20    Kan.   15<!,  p. 

185. 
Gilbert  v.  Rider,  Kirby,  180,  pp.  .339,  342. 
Gilleland  v.  State,  44  Tex.  :556,  pp.  367, 

548. 
(iillespie  v.  Benson,  18  Cal.  409,  p.  8. 
(Jillespie  V.  State,  8  Yerg.  .507,  p.  340. 
Gilliam  v.  Brown,  43  Miss.  641,  i)p.  274, 

301. 
Gilloolev  V.   State,  .58  Ind.  182,  pp.  339,. 

342,  346. 
Gihnan  v.  State,  1  Humph.  59,  pp.  C80, 

724,  737. 
Gilmanton  v.  Ham,  38 X.  H.  108,  p.  457. 
(Jladden  v.  State,  13  Fla.  623,  pp.  45,79, 

603,  618,  646. 
Glassinger  v.  State,  24  Ohio  St.  206,  p. 

.')72. 
(ilenn  v.  State,  1  Swan,  19,  ji.  674. 
(;iidden  v.  Towle,  31  N.  H.  147,  p.  485. 
Glover  v.  Woolsey,  Dudley  ((;a.),85,  pp. 

189,339,341. 
Goenwelt  v.  Burwell,  1  Ja\.  Rajnn.  469, 

p.  749. 
Gold  Mining  Co.  v.  Xat.  Bank,  96  U.  S. 

640, p.  219. 
Golding  V.  Petit,  27  La.  An.  86,  p.  17. 
Goldsmith  v.   Solomons,  2    Strobh.   L. 

290, p.  424. 
Goode  V.  State,  2  Tex.  App.  520,  pp.  357, 

365. 
Goode  V.  Joynt,  Irish  R.  8  Eq.  425.  p.  15. 
Goode  V.  Linecum,  1  How.  (Miss.)  28K 

pp.  488,  497. 
(icc-ciluic  V.  Jeople  ,  !'4  111.  :  7,  p.  '.9. 


TABLE  OF  CASES  CITED. 


XXVU 


tioodin,  /•:.(•  iiarle,  (i?  JIo.  (iSV,  pp- 32,  3(1. 
<;o0drich  v.  15mdick,  20  Mich.  3S),  p.  275. 
(Joodtitle  V.  Tlniistout,  a  Stni.  102;},  p. 

11(1. 
<;ooa\viii  V.  .Vppleton,  22  Me.  453,  p.  391. 
c;ood\viii  V.  lihicliley,  4  iQil.  43S,  pp.  223, 

225,  236. 
(Joodwiii  V.   Clondniiui,   43  Me.  5,,,  p. 

3(14. 
Goodwin  V.  Phillips,  Lofft,  71,  p.  514. 
(ioodwyu  V.  State,  4  Sm.&  M.  .520,  )).  734. 
<;ordon  V.   Com..  92  I'a.  St.  21():.s.  c,  1 

Crini  L.  May.  5S3,  pp.  740,  741,  745. 
<;ordon  v.  People,  33  N.  V.  501,  p.  208. 
<;ornilev  v.   Larimore,  40  Ga.  253,   pp. 

323,  338. 
<;oynev.  Howell,  :Minor,  02,  p.  :'.27. 
Cirace  v.  Clinch,  4  Q.  B.  600,  p.  15. 
(irady  v.  Karly,  18  Ca).  los,  p.  -274. 
(Jrady  v.  State,  4  Iowa,  4(;i,  p.  .5.53. 
(Jrahiun  v.  Triiuiner,  (i  Kan.  231,  p.  174. 
(irahnie's  Case,  12  How.  St.  Tr.  6(>5,  pp. 

95,  96.  151. 
Cirand  •Iiuy  v.  Public  Press,  4  Brewst. 

:il3,  )ip.  053,  065,  00(;.  067. 
liraiKl  .lury.    Re,  3  Craw.  &  Dix  C.  C. 

395,  p.  710. 
Grand  ]tapld>*  Booniini--  Co.  v.  Jaivis, 

30  Mich.  30S,  p.  2'.)S. 
Graunis  v.  Brandon,  5  Day,  200,  p.  430. 
(;rant  v.  State,  3  Tex.  App.  1,  ]).  324. 
•<;i-atz  V.  Benner,  13  Sersi.  A  R.  110,  p.  189. 
(Ji-aves  V.  Monet,  7  Smed.  .t  M.  45,  p.  355. 
Graves  v.  Short,  Cro.   p:iiz.  010,  p.  469. 
Graves  v.  State,  63  Ga.  740,  p.  492. 
Gray  v.  Knight,  16  ('.  B.  143,  p.  14. 
Gray  v.  People,  20  111.  344,  pp.  221,  22S. 
Gray  v.  State,  .55  Alu.  so,  pp.  102,  131. 
Greeley  v.  Mansur,  64  Me.  211,  pp.  540, 

550. 
<;reen  v.  Bliss.  12  IIow.  Pr.  429,  p.  541. 
(ireen  v.  Hill,  4  Tex.  405,  p.  230. 
Kireen  v.  State,  19  Ark.  178.  pp.  705.  734. 
Green  v.  State,  17   Fla.  069,  pp.  9S,  .321, 

Green'v.  State,  28]Miss.  087,  pp.   019,  (;20, 

734. 
<;reen  v.  State,  1  Tex.  App.  82, p.  .597. 
KJreentield  v.  People,  74  N.   Y.  277,  pp. 

135,  219,  225,  243,  244,  209,  285. 
Groenley  v.  State,  60  Ind.  141,  pp.  208,210. 
Kireeniip  v.  Stoker,  8  111.  202,  p.  343. 
(ireenwood  v.  State,  17  Ark.  332,  p.  329. 
Greer  v.  Xorvill,  3  Hill  (S.  C),  202,  pp. 

38,  299,  309. 
<ireffi  v.  Blake,  16  Iowa,  222.  p  458,  499. 
Greggv.  McDaniel,  4   Harr.    (Del.),  367, 

p.  4.58. 
((iresrory  v.  Wells,  Smith,  239,  n.  p.  340. 
(iriftin  V.  «^tadler,  35  Tex.  695,  p.  289. 
(iriffin  V.  State,  15  Ga.  476,  p.  214. 
Gritlin,  v.  State,  18  Ohio  St.  438,  p.  30S. 
Grifflts  V.  Iverv,  11  Ad.  &  El.  322,  p.  474. 
Grinnell  v.  Phillips,  1  Mass.  .529,  pp.  510, 

514,  .541. 
Grissomv.  State,  4  Tex.    App.  374,  pp. 

225,  227,238,  273,  299,  309,  324. 
Groeuwelt  V.  Burwell,  1  Ld.    Uaym.   469, 

p.  749. 
irroppv.  People,  67   111.    154,   pp.   79,  92, 

279,  284. 
Gross  v.  State,  2  Ind.  329.  p.  208. 
<;rubb  V.  State,  14  Wi«.  434,  p.  019. 
Guard  V.  llisk,  11  Ind.  1.50,  p.  510. 
Guetigv.  State,  06  Ind.  94,  pp.  210,  227, 

229. 
Gunn  V.  IIoneyman,2  Barn.  &   Aid.   400, 

p.  12. 
<iuiiter  V.  I'atton,  2  Ileisk.  2.57,  p.  174. 
i<iurnev  v.  Chapman,  3  Dowl.  &  r>.  734,  p. 


Guykowskiv.  People,  2  111.  47i>,   pp.  338, 
345. 

11. 

Hackley,  Re,  21  How.  Pr.  103,  p.  (U7. 
Hacklie  v.  tiastie,  3  Johns.  252,  pp.  490, 

498,  503. 
Haiiadorn  v.  Conn.    Mat.   Ins.     Co.,    22 

llun,249,  p.  234. 
llager  v.  Hager,  38  Barl).  92,  p.  410. 
Hague  V.  Hall,  4  Man.  &  Gr.  693,  p.  13. 
Hague  V.  State,  34  Miss.  010,  p.  734. 
Haight  V.  HoUey,  3  Wend.  2.58,  p    07. 
Ilaiaht  V.  Turner,  21  Conn.  593,  pp.  540, 

542. 
Hairgrove  v.  Millington,  8  Kan.  480,  pp. 

477,  478.  480. 
Haldane  v.  Beauclerk,  3  Exch.  658,  p.  13. 
Hale  v.  Cove,  Strange,  642,  p.  509. 
Hall  V.  Meadowcroft,  4  Maule  &  Sel.  467, 

p.  13. 
Hall  V.  Perott.  Bald.  123,  pp.  12,13. 
Hall  V.  Robison,  25  Iowa,  91,  pp.  540,  .5.55. 
Hall  V.  Kuplev,  10  Pa.   St.   231,  pp.  481, 

488. 
Hall  V.  State,  40  Ala.  693,  pp.  4,  77,  131. 
Hall  V.  State,  51  Ala.  9,  pp.  70,  71,  99,  223, 

300. 
Hall  V.  State,  S  Ind.  439,  p.  420. 
Hall's  Case,  3  Gratt.  593,  p.  709. 
Hallock  V.  Franklin    County,    2    Mete. 

558,  13.  304,  .528. 
Halloway  v.  State,  53  Ind.  554,  p.  619. 
Ham  v.  Lasher,  24  Up.  Can.  (i.  B.  533,  n. 

pp.  305,  333. 
Hamilton  V.  Des  Moines  Valley  R.  Co., 

36  Iowa,  31,  pp.  510,  512. 
Hamilton  V.  Glenn,  1  Pa.  St.    340,    pp. 

472,  486. 
Hamilton  v.  Pease,  38  Conn.  115,  pp.  40 ;, 

407,440,441. 
Hamilton  v.  People,  29  Mich.  173,  p.  (564. 
Hampton  V.  Speckenagle,  9  Serg.  &  R. 

212,  p.  470. 
Handley  V.  Leigh,8  Tex.    129,    pp.    510, 

514. 
Handline  v.  State,  6  Tex.  App.  347,  pp. 

321,376. 
Handy  v.  Call,  30  Me.  9,  pp.  230,  465. 
Hanger  v.  Imboden,  12  Mo.  85,  p.  4(1. 
Hanks  v.  State,  21  Tex.  520,  pp.  205, 341. 
Hanna  v.  People,  86  111.  243,  p.  81. 
Hauna  v.  People,  19  Mich.  319,  p.  664. 
Hannah  v.  State.  1  Tex.  App.  .578,  p.  710. 
Hunnum  v.  Bwlchertown,  19  Pick.  311,  p. 

540. 
Harbour  v.  Scott,  12  La.  An.  152,  p.  373. 
Hardenbaugh  v.  Crary,  15  IIow.  Pr.  :;0i, 

pp.  319.  323,  320,  340.  343. 
Hardin  v.  State,  22  Ind.  347,  pp.  603,  60t, 

609,  615,617. 
Hardin  v.  State,  4  Tex.  App.  3.55,  p.  289. 
Harding  v.  State,  22  Ark.  210,  p.  (i4H. 
Harding  v.  Whitney,  47  Ind.  379,  pp.  347, 

547. 
Hardly  v.  State,  7  Mo.  607,  p.  491. 
Hardy  v.  Norton,  66  Barb.  .527,  p.  474. 
Hardv  v.  Sprowle,  32  Me.  310,  pp.    183, 

184,  338. 
Hardy's  Case,  24  How.   St.   Tr.  414,    pp. 

3.51,  385,  394. 
Hare  v.  State,  4  IIow.   (Miss.)   189,  pp. 

123,  369,  372,  406,  537. 
Harebottle  v.  Placock,  Cro.  Jac.  211,  p. 

452. 
Harkins  v.  State,  6  Tex.   App.    452,    p. 

297. 
[larless  V.  United  States,  Morris    (la.), 
109,  p.  (574. 


XXVlll 


TABLE  OF  CASKS  CITED. 


Harper  V.  Farmers',  etc.,  IJiink,  7  Watts 

&  S.  •204,  p.  -tTt;. 
Harper  V.  Keaii,  11  Serj<.   A   1!.   JSO,    pp. 

2-2t>,  -2:50. 
Harper  v.  State,  2'^  Ark.  S3,  p.  :V2!>. 
Harper  v.  State,  +2  1ml.  •IK.'j,  p.  .^Xs). 
Harper  v.  .State,  7  Oliio  St.  7:5,  p.  <it)4. 
llarriman  v.  State,  1  (i.  IJreene,  271,  pp. 

.^1,  :iJ.-<,  7(11.  711,  7i.>,  7:!',  7;!4,  7;i7. 
ManiiiKiii  v.  Wiiuins, '20  Me.  !):{,  p.  47:5. 
llaI•riIl^'t(>ll  V.  State,  36  Ala.  3'2ti,  ])p.  JS4, 

GOlt,  ti-2(l. 
Harris  v.  State,  2  Tex.  App.  102,  p.  .320. 
Harris  v.  State,  6  Tex.  App.  07,  p.  109. 
Harri-sbiug  15ank  v.  Foster, 8  Watts,  304, 

1).  10(>. 
JIarrisoii  V.  Hance,  :!7  Mo.  IS."),  pp.  401, 

4!)2. 
Harrison  v.  I'riec,  22  Ind.  la"),  p.  440. 
Harrison  v.  Kowan,  4  Wash.  C.C.  32,  pp. 

451,  .V21. 
Harrison  v.  State,  4  Coldw.  10.5,  p.  074. 
Harrison  V.  State,  3  Tex.  App.  Ms,  pji. 

4.1,  7.'>,  100. 
Hart  V.  State,  .")7  Ind.  102,  p.  21t;. 
Hart  V.  Tallmadf^e,  :5  Day,  ;)S1,  pp.   ]-27, 

12S. 
Ilarter  v.  Seaman,  :5  IJlaekf.  27,  p.  :?ss. 
Hartford  IJank  v.  Hart,  3   Day,  401,  pp. 

1S4, 27.-). 
Hartranft's  Appeal,  SO   Ta.   St.  4,53,   pp. 

mi,  CAM,  07:!. 
Hartshorn  y.  lielston,  3  Caines,  t4,  p. 

10. 
JIartshorn  v.  I'atton,  2  Dall.  2.V2,  p.  3. 
Hartzell  v.  Com.,  40  I'a.  St.  402,  pp.   l.'>7, 

202. 
Harvey  v.  Hewitt,  S  Dowl.  1'.  ('.  .iOS,  pp. 

.514,  .315,  510. 
Harvey  V.  Jones,  3  Humph.  l.J7,  pji.  510, 

.552. 
Harvevv.  Uiekett,  15  .Johns,  s7,  p.  510, 
Harvey  v.  Tyler,  2  Wall.  .32s,  p,  .500. 
Hasselmeyel-  v.  State,  1    Tex.   App.  000, 

p.  :i23. 
Hatch  v.  Mann,  0  Wend.  2(;2,  pp.  373,  380. 
Hatcher  v.  Fowler,  1  IJibb,  :5:!7,  p.  317. 
Hatclie)-  v.  state,  is  Ga.  400,  p.  731, 
Hatfield  v,  Cheaney,  70  III,  iss,  p,  4S3, 
Hathaway  v.   Heliiier,  25  ISarlj.   20,  ]ip. 

100,  :50:5. 
Ilaiin  v,  Wilson,  2S  Ind.  20(;,  pp,  ,540,  .54:5, 

.547. 
Hau,ser  v.  Com.,  5  .\ni.  L.  Reg.  (X.  S.) 

608,  p.  2:50. 
Hawes  v.  Gustin,  2  .Mien,  4fr2,  p.  185. 
Hawkes  V.  Kennebeck,  7  Mass.  401,  p. 

1.S5. 
Hawkins  v.  Andrews,  .30  Ga.  118,  p.  .■>41. 
Hawkins  v.  New  Orleans  l'rintin{<  Co., 

20  La.  An.  l:!4,  pp.  40(>,  4.30. 
Hawkins  v.  State,  13  Ga.  .322,  pp.  1.50,  1.52, 

1.53. 
Hayden  v.  Com..  10  B.  Mon.  125,  p.  721. 
Haj'den  v.  I^onjr,  s  Oreir.  244,  p.  271. 
Hayes  v.  Uefj.,  10  Irish  L.  .53.  p.  i;;i. 
Hayes  v.  Heji.,  2  (ox  C.  C.  105.  p.  117. 
Hayes  v.  Stale,  5S  Ga.  :!5,  p.  7:!1. 
Haves  V.  Thomp.son,  15Abb.  I*r.  (X.  S.) 

'220,  pp.  :5.50,  :54:!. 
Haynes  v.  Crutehlield,  7  Ala.  ISO,  p.  .301. 
HayAvard  v.  Calhoun,  2  Ohio  St.  1(54,  p. 

208. 
Hayward  v.  Knapp,  22  Minn.  5,  p.  520. 
Head  v.  Lanf^worthv,  1.5  Iowa,  2:i5,  p.  488. 
Head  v.  State,  44  Mi.ss.  731,  p.  274. 
Heard  v.  Tierce,  S  Cusli.  3:58,  pp.  6.52,  (553, 

099. 
Heard  v.  State,  0  Tex.  App.  I,  p,  .507. 
Hearn  V.  Greensburf^,  51  Ind.  110,  )i.  Is5. 


Heaston  v.  Cincinnati  etc.   It.  Co.,    1(> 

Ind.  275,  p.  208. 
Heath  V.  Com.,  I  Itob.  (Va.)  7:5i5,  pp.  2:54, 

:543. 
Heatli  V.  Conwav,  1  15ibb,  :508,  pp.510, 

511   514,540,  .542,  .543. 
Hetlron  v.   (iaihipe,  .55  ^le.  .503,  pp.  40(J, 

4:50,  440.  4S1,  405,  .520. 
Heiiislei-  v,  Frecdman,  2  Pars.  Sel.  Cas. 

K(|.274,p.  075. 
Ileiser  v.  \an  Dyke,  27  Iowa,  ;5d9,  pp.  3i53, 

:!S8. 
Heller  v.  Kn^lish,  1  Strobh.  L.  480,  p.  303. 
^Hendel  v.  IJerks  etc.  Tp.  Ud.,  16  Serg.  & 

n.  02,  pp.  472,  477. 
Hendi-ick  v.  Cannon,  5  Tex.  248,  p.  32s. 
Hendrick  v.  Com.,  5  Lei;<h.  70S,  pp.  2.53, 

200. 
Hendriek.son  v.  Kin^j.sbiiry,  21  Iowa,  370, 

pp.  510,  51S,  .5.53,  .5.5.5', 
Hendrix  v.  State,  .50  Ala.  14S,  p.  :528. 
llenniiif>:  v.  Hannibal  etc.  It.  Co.,  :i.5  Mo. 

40S,  ]),  10. 
Henrie  v.  State,  41  Tex.  5":i,  p.  :547. 
llenr\-  v.   Cnvillier,  3  Mart.  (\.  S.)  524, 

p.  :541. 
Heniy  v.  Kicketts,  1  Cranch  C.  C.  .5-25,  p. 

.52:5. 
Henry  v.  State,  :53  .Ma.  ;W0,  p.  77. 
Henry  \-.  State,  :!3  Ga.  441,  p.  2(54. 
Henry  v.  State,  4  Humph.   270,  pp.  200, 

Herbert  v.  Shaw,  11  Mod.  US,  p.  .528. 
llenidon  v.  I5rad.sha«  ,  4  Hibb,  45,  p.  3:58. 
Herriufj  v.  State,  1  Iowa,  205,  )).  7a5. 
Heskethv.  iJraddoek,  3  IJurr.  1S47,  pi). 

184,  2()7. 
Hess  V.  State,  73  Ind.  .537.  p.  COO. 
Hess  v.  State,  .57  N.  H.  188,  p.  028. 
Hester  V.  >tatc,  17  Ga.  140.  p]).  .VIO,  .544. 
Ilewett  V.  Cobb,  40  Miss.  01,  p.  :}26. 
Hewitt  V.  I'oineer  I'ress  Co.,  23  Minn. 

17S,  p.  .5:51. 
Hiatt  V.  Mutual  Life  Ins.  Co.,  2  Dill,  .572, 

note,  p.  2:54. 
Hieks  V.  Kllis,  (^5  Mo.  170,  p.  .534. 
Hicks  V.  State,  5  Tex.  .\i>i».  488,  p.  93. 
Ilif^h  V.  .Johnson,  2S  Wis.  72,  j))).  .388,  ;5S»2. 
Hight  V.  Landon,  .53  Ind.  si,  jj.  70. 
Hill  V.  I'eoiile,  10  Mich.  :551,  ])i).  0,  7,  ;>44. 
Hill  V.  State,  2  "lerg.  240,  pp.  1.52,  1.5:5. 
Hill  V,  State,  (54  Ga.  453,  )).  .540. 
Hill  V.  Yates,  12  Fast,  220,  p]).  .3.32,  :5:5;;. 
Hill,  K.r  parte,  3  Cow.  ;!.55,  ]).  :!.50. 
Hilton  V.  Southwick,  17  Me.  :!03,  p.  4.55. 
Hindle  v.  Birch,  S  Taunt.  20,  ]>.  .547. 
Hines  v.  State,  8 Humph.  597,  pp.  :500, 301,. 

:5(i7,  3S0. 
Ilinkle  v.   Davenport,  ."W  Iowa,  ;>55,  p. 

:520. 
Hite  V.  State.  0  "i'erg.  108,  j)]).  7:54,  7:56. 
Hix  v.  Druiv,  5  I'ick.  297,  pp.  406,  486,  496, 

.547,540. 
i  Hoare  v.  Uroom,  Cro.  Kli/,.  309,  p.  11.5. 
lloberg  V.  State,  3  Minn,  2(52,  ]).  420. 
llegan  v.  State,  :;o  Wis.  220,  ]>.  :i40. 
llogbtaling  V.  Osborn,  15  Johns.    110,  ))_ 

:;04, 
Hogshead  v.  State,  0  Humph.  .59,  pp.  304.. 

400. 
Hollingsworth  v.  Duane,  4  Dall.  1553,  pi)- 

177,  :58S. 
Hollis  V.  State,  8  Tex.  Apji.  (!20,  p.  .300. 
Ilolloway  V.  State,  .53  Ind.  .5.54,  pp.347, 

047,  7:50,  732. 
Holmcad  v.  Corcoran,  2  Cranch  C.  C. 

110,  p.  .5:j9. 
Holt  V.  Mells,  4  Smed.  A:  M.  110,  p.  328. 
Holt  V.  People,  13  Mich.  224,  ])]>.  216,  2.52, 

200.  270.  :!00. 
llolton  V.  state,  2  Fla.  470.  1>P-  T:54,  736. 


I 


TABLE  OF  CASES  CITED. 


XXIX. 


Ilord  V.  Com.,  4  Leifili.  674,  p.  649.     . 
Hook  V.  Page,  1  Over' on,  250,  p.  -JIW. 
Hooker  v.  State,  4  Oliio,  :!4.s,  pp.  -IS't,  2!)(i. 
Hooper  v.  State,  5  Yerg.  422,  ]).  141. 
Hoot  V.  Si)ade,  20  Iiul.  :;2(),  p.  320. 
Hoover  v.   State,  .5  Baxter  (Teiin.),  672, 

p.  .•571. 
Hope  V.  Beoi)le,  83  N.  Y.  418,  p.  693. 
Hopkins  v.  Com.,  50  Pa.  St.  9,  pp.  70S,7.'!5. 
Hopkins  v.  Preston,  2  A.  K.  Mai'sh,  64,  p. 

314. 
Hopkinson,  v.  Steele,  12  Vt.  582,  pp.  480, 

502. 
Horbiich  V.   State,  43  Tex.  242,   pp.  289, 

295. 
Hornbuc'kel  v.   Toombs,  18  Wall.  648,  ]). 

51. 
Home  V.  State,  37  Ga.  80,  p.  1.52. 
Home  Took's  Case,  25  How.  St.  Tr.  17, 

p.  229. 
Horton  V.  Horton,  2  Cot.  589,  p.  388. 
Horton  v.  State,  47  Ala.  .58,  ]).  618. 
Hotz  V.  Hotz,  2  Ash.  (Penn.)  245,  p.  292. 
House,  Jix  parte,  36  Tex.  83,  pp.  32,  ."56. 
Hotistou  V.  ^Vorcl8 worth,  65  >('.  C.  41,  p. 

438. 
Hovev  V.  Thompson,  37  111.  538,  p.  471. 
Howard  v.  Cobb,  3  Day,  310,  ]i.  .541. 
HoMell  V.  Hartford  Fire  Ins.  Co.,  (j  Biss. 

163,  pp.  474,  475. 
Howell  V.  Howell,  59  Ga.  145,  ]ip.  17,  254, 

312. 
Howell  V.  Kobertson,  0  X.  J.  L.  142,  p.G7. 
Howerton  v.  State,  Kleins,  262,  ]).  342. 
Howland  v.  (i  fford,  1  Pick.  42,  n.,  pp.  90, 

324,  340,  ,528. 
Howland  v.  Willetts,  9  X.  Y.  170,  iip.  478, 

486,  .503. 
Howie  V.  Dunn,  1  Leiah.  4.55,  p.  3.5(). 
Hoye  V.  State,  .39  Ga.  718,  ]).  .540. 
Hubbard  v.  Gale,  105  Mass.  511,  p.  277. 
Hubbard  V.  Rutled<?e,  57  Miss.  7,  pj).  197, 

309. 
Ilublev  V.  'W'lnte,  2  Yeates,  133,  p.  94. 
Hubotter  v.  State,  32  Tex.  479,  pp.  274, 

292  295. 
Hud^iiis  V.  State,  2  Ga.  173,  pp.  157,  214, 

216,  223,  229. 
Hudgins  v.  State,  61  Ga.  182,  p.  347. 
Hudson  v.  Baker,  Cro.  Fliz.  663,  ]).  108. 
Hudson  V.   State,  1  Blackf.  317,  pp.  2.57, 

592,  64(i. 
Hudson  V.  State,  40  Tex.  12,  pp.  609,  619. 
Hudson  V.  State,  9  Ycrg.  40S,  pp.  419,  551. 
Hudsi)eth  v.   Herston,  64  Ind.  1.33,  pp. 

184,  343. 
Huebuer  v.  State,  3  Tex.  A]ip.  4.58,  ]>.  .32*. 
Hughes  V.  Cairo,  92  111.  399.  p]i.  233,  234. 
Hughes  V.  Listner,  23  Ind.  396,  p.  540. 
Huldekoper  v.  Cotton,  3  ^Vatts,  56,  pp. 

739,  741,  742,  745. 
Hull  V.  Albro,  2  Disney,  147,  pp.  339,  343. 
Hulse  V.  State,  35  Ohio  St.  421,  ]).  17. 
Humphries  v.  McCraw,  5  Ark.  (il,  ]).  471. 
Hungate  v.  Hamond,  Cro.  Eliz.  188,  p. 

337. 
Hunt  V.  Mavbee,  7  X'.  Y'.  273,  ]i.  500. 
Hunt  V.  Mayo,  27  i.a.  An.  197,  p.  124. 
Hunt  V.  Scdbie,  6  B.  Mon.  469,  p.  ,ss. 
Hunter  v.  Mathis,  40  Ind  357,  p.  749. 
Hunter  v.  Parsons,  22  Mich.  9(5,  j).  296. 
Hunter  v.  State,  43  (Ja.  484  pp.  412,  528. 
Hunter  v.  State,  8  Tex.  A]ip.  75,  i)p.  509, 

510,  .516,  5.57. 
Hurl-y  V.  State,  29  Ark.  17,  pp.  275,  299, 

335,  477. 
Hussev  V.  Allen,  .59  Me.  269,  pp.  303,  .527. 
Huston  V.  Vail,  51  Ind.  299,  p.  438. 
Hutchinson  v.  Consumer's  Coal  Co.,  36 

X.  J.  L.  24,  pp.  443,541,547. 


Hutchinson  v.   Decatur,  3  CranchC.  ('. 

291,  p.  481. 
Hutton  V.  Hun,  Cro.  Eliz.  849,  p.  267. 
Hyde  V.  State,  16  Tex.  445,  p.  208. 

I. 

Illinois,   etc.    1!-.  Co.  v.  .Vble,  .59  111.    131^ 

pp.  510,  515. 
Imlay  v.  Kogers,  7  X.  J.  1,.  347,  ]».  745. 
Ince's  Case,  20  L.   T.   (X.  S.)  421;  s.  c. 

Allen  Tel.  Cas.  497,  n.,  p.  675. 
Indianapolis  v.  Scott,  72  Ind.  196,  p.  523. 
Ipswich  V.  Essex,  10  Pick.  519,  p.  304. 
Irish  V.  Wright,  8  Bob.  (La.  i  428,  p.  r>47. 
Irvine  v.  Cook,  15  Johns.  239,  p.  4S2. 
Irvine  v.  Kean,  14  Serg.  &  K.  292,  pp.  225, 

236. 
Irvine  v.  Lumbermen's  Bank,  2   Watts 

&  S.  190,  p.  216. 
Irwin  v.  Gray,  L.  B.  1  C.  P.  171,  p.  14. 
Irwin  V.  Jones,  1  How.  (Miss.)  497,  p.  327. 
Isaac  A-.  Clarke,  2  Gill.  1,  p.  189. 
Isaac  V.  State,  2  Head,  4.58,  p.  301. 
Isham  V.  State,  I  Sneed,  111,  p.  321. 
Iverson  v.  State,  .52  .Ma.  170,  p.  30s. 


Jack  V.  Xaber,  15  Iowa.  4,50,  p.  r>'>i. 
Jack  V.  State,  26  Tex.  1,  i)p.  3.53,  370,  401, 

.524,  .526. 
Jackson  v.  Com.,  23  Gratt.  919,  pp.  218, 

223,225,  226. 
Jackson  V.  Com.,  1;;  Gratt.  795,  pp.  619.. 

1)20. 
.Jackson  v.  Dickenson,  15  .Johns.  310, pj). 

.542,  .545. 
Jackson  v.  Hawks,  2  Wend.  619,  p.  393. 
.Jackson  v.  Jackson,  5  Cow.  173,  p.  .527. 
Jackson  v.  Jackson,  32  Ga.  325,  p.  4l!S. 
Jackson  v.  Jackson,  40  (ia.  1.50,  p.  462. 
Jackson  v.   Pittsford.  8  Blackl.   194,  p> 

29(!. 
Jackson  v.  Smith,  21  Wis.  26,  p.  447. 
Jackson  v.  State,  (i  l?lackf.  4(il,  p.  6. 
Jaclcson  V.  State,  21  Ind.  171,  pp.  7:'>0,  734^ 

735. 
Jackson  v.  State,  4  Tex.  A  pp.  2  .2,  pp.  77, 

98. 
Jack.son  v.  State,    11  Tex.    261,  pp.  603, 

731. 
Jackson  v.  State,  51  Ga.  402,  ii.  301. 
Jaek.son  v.  State,  56  Miss.  .530,  p.  77. 
Jackson  V.  Williamson,  2  T.  K.  2sl,  ]>]). 

540,  .543. 
Jackson's  Case,  25  IIow.  St.  Tr.  804,  p.. 

28(). 
Jacobs  V.  Dooly,  1  Idaho,  36,  p.  .540. 
Jacobs  V.  State,  9  Tex.  A\i]i.  278,  j).  196. 
Jacques  V.  Com.,  10  Gratt.  6;!0,  pp.  181,. 

182. 
James  v.  State,  .53  Ala.  380,  pp.  274,  324. 
James  v.  State,  .55  Miss.  57,  pi).  388,  393. 
Jameson  v.  Androscoggin  li.  Co.,  52  Me. 

412,  ]ip.  .304,  323. 
Jefferson  v.   State,  52  Miss,  767,  pp.  7(>, 

301. 
Jefferson  City  v.  Opel,  67  JIo.  394,  ]).  534.. 
Jeffries  v.  Com.,  12  Allen,  145,  ]>.  279. 
Jeffries  v.  Bandall,  14  Mass.  205,  p.  342. 
Jenkins  v.  State,  41  Tex.  128,  pp.  3(55,  370, 

400,  .526. 
Jenkins  v.  State,  30  Miss.  408,  ]).  734. 
Jerry  v.  State,  1  Blackf.  395,  pp.  729,  733. 
Jesse  V.  State,  20  Ga.  156,  pp.  157,  276. 
Jessup  v.  Eldridge,  1  X.  J.  L.  401,  pp.  475, 

495. 
Jeter  v.  Heard,  12  La.  .\n.  3,  pp.  542,  .543, 
Jetton  V.  State,  Meigs,  192,  pp.  643,  649. 


xxx 


TABLE  OF  CASES  CITED. 


Jewell  V.  Coin.,-.".*  l*:i.  St.  '.il,  pp.  lli;,  117, 

•JTT,  :i!7. 
Juw.sbiiry  V.  Speity,  .s.")  111.  ."x;,  |).  U(i. 
.Ilioiis  V.  i'fopu-,  ift  ilirli.  ."iiMt,  p.  -.".m;. 
Jillaril   V.  Com.,   Jii  I'a.  st.   lii'.i,   i)p.   7-M, 

7-.">. 
.liiu  V.  State,  4  ilmnpli.  'iX'.\  i>.  .'il'.t. 
.Inhii  V.  ."^tute,  Hi  till.  •-'(Ml,  i)p.  JJI,  ■.>7."),  -J'.i'.i. 
JolniLX)!!  V.  .\iiierifiis.  4(i  Cia.  .*<0,  p.  18.'). 
•  Johnson  V.   Ultukweli,  fi  Csif.  &  I'.  ■J:!G, 

p.  iJ. 
■lohn.son  v.  Cole,  1  X.  J.  I..  ifiO,  ]).  Cn. 
•Johnson   v.  Davenport,  :J  ,).  J.   Aiarsli. 

.■{!l;{,  pp.  .VKi,  ."i44. 
Johnson  v.  liowe,  7  111.  .'J4-J,  ]).  :5i):i. 
Johnson  v.  llushand,  -J-J  l\aii.  277,  ]>]). 

.")l:!,  .il.'),  .")4ii,  .Vii;. 
. Johnson  v.  I'erry,  "2  IInnii)li.  .")(;i),  p.  .iIO. 
.Johnson    v.    IJichardson,    .">2    Tex.   481, 

p.  isi. 
Johnson    v.    Root,  ■>  Clitf.    108;    .?    c,  "2 

Kisher's  I'at.  ('as.  2'.tl,  pp.  .i.Mi,  .");)7. 
Johnson  v.   State,  47  Ala.  ii,  i)p.  .JUO,  328, 

.•5211. 
Johnson  v.  .State,  .')8  Ga.  4'.>l,  ]>.  274. 
Johnson  v.  State,  :{:>  Miss.  :'.<>:{,  j).  ()-27. 
Johnson  v.  State,  2:!  Ind.  :!2,  p.  71'). 
■  lolinson  V.  State,  1  Tex.  -\pp.  .)l!t,  p.  r!2il. 
Johnson  v.  stale,  4   Te.\.   App.   2(;8,   pp. 

;t;i,  !)8. 
Johnson  v.  state,  27  Tex.   7.')!i,  pp.    :508, 

.V24,  520.  .")41,."m7. 
Johnson  v.  state,  :i:!  Tex.  .■)7(),  p.  (io'.i. 
Johnston  v.  Jones,  1  I'.laek,  20'.),  p.:m. 
Johnston  V.  stale,  7  Snied.   &  JSl.  .')8,  p. 

Johnstone  v.  Sutton,   1  Temn  I!ep.  .">;;."), 

p.  74'.i. 
.Johr  V.  People,  2r>  .Mich.  427,  p.  .m. 
J(jiee  V.  Alexander,  1  Craneh   C.   C.  .528, 

pp.  24'.t,  2.V2,  281. 
clones  V.  Biilterworth,  3  N.  J.   L.  :',i'>,  ]). 

247. 
Jones  V.  Com.,  :U  Gratt.  8;!(),  p.  .');!.'). 
•Jones  V.  ieoi)le,  2  Colo.  ;5.il.  pp.  241,  208, 

:5;!8. 
Jones  V.  state,  2  IMackf.  47."),  pp.  208,  201, 

2f4,  2!)1,  ;!01,  :572,  ."mO,  .-5,87,  .-)8!»,  ."jllO,  0:58. 
Jones  V.  State,  .'i  Uhiekf.  :57,  Jip   122,  12:5. 
Jones  V.  State,  4  Hlaekf.  :57,  p.  00. 
Jones  V.  State,  '>'  Miss.  (■)84.  p.  20".). 
.Jones  V.  .State   (Sup.  Ct.   Uhto,  ia')I),  8 

West.  L.  J.  508,  p.  121. 
Jones  V.  State, :!  Tex.  App.  575,  p.  75. 
Jones  V.  State,  8  Tex.  App.  VAX,  p.  205. 
Jones  V.  State,  1  Ga.  010,  pp.  21,  157. 
Jones  V.  State,  1:5  Tex.  I(i8,  pp.  :507,  457. 
Jones  V.  Tiupin,  Olleisk.  isi.pp.  7:5!),  740, 

744,  745. 
.Jones  V.  \  ail,  :!0  X.  J.  L.  1:5.5,  p.  417. 
.Jones  V.  Vanzant,  2  .McLean,  Oil,  p.   200. 
Jordan  v.  Meredith,  1  I5inn.  27,  p.  :!0:5. 
Jordan  v.  state,  22  Ga.  .545,  p.  270. 
Josephine  v.  State,  :5'.i  Miss.  01:5,  ]).  207. 
Josey  V.  Wilmington,    etc.,    It.    Co.,     12 

IJich.  I-.  \M,  p.  :5:!!i. 
Joy  V.  State,  14  Ind.  1:50,  p.  01. 
-Joyce  V.  State,  7  15axt.  27:5,   pp.  500,  511, 

515,  .5.52. 
Jndah  v.  McXamee.  :5  T51ackf.  200,  p.  :52<J. 
Judge  V.  State,  8  Ga.  17:5,  pp.  70,  :5:55. 
Judson  V.  Kslava.  Minor,  Ala.  :5,  p.  24. 
Jumjieitz  V.  l'eo])le,  21  111.  411,   j)p.  :500, 

;580,  :581,  :582,  402. 

K. 

Kasselhanni  V.  state,  45  Ind.  277,  p.   10:5. 
Kee  V.  State,  28  Ark.  1.55,  pj).  :500.  4.58. 
l\eeeh  V.  State,  15  Kla.  .501,  p.  (>47. 
Keenan  \ .  state,  S  Wis.  1:52,  pp.  322,  207, 
:5>'l. 


Keener  V.  State,  IS  Ga.  104,  pp.  3:50,  342. 
Keiser  v.  Lines,  57  Ind.  4:51,  p.  202. 
Keitler  V.  State,4  (;.  (ireeiie,  401,  p.  .507. 
Kell  V.  IJrillinger,  8j  Pa.  St.  270,  p.  1:52. 
Kellev  V.  reojtle,  .55   X.    V.   ,505,    i))).    17:5, 

174. 
Kelley  v.  State,  .5:5  Ind.  :5I1,  p.  («)8. 
Kellogg  V.  Wilder,  15  Johns.  4.55,  p.  401. 
Kellv  V.  Sheehv,  8  Dalv,  20,  p.  542. 
Kelly  V.  Slate,':!  Smed."  A  M.  518,  p.  SO. 
Keini)er  v.  Louisville.  14  Hush,  8;,  p.  l,S5. 
Kennedy  v.  Dale,  4  W'atts  &    .S.   17(5,   p. 

2;  12. 
Kennedy  \.  Kennedy,  18  X.  J.  L.  450,  pp. 

510,515. 
Kennedy  v.  Com.,  14  Dush,  :!40,   pp.   72, 

:52:5,  :5:58,  :5:50. 
Kennedy  v.  Com.,  2  Va.  Cas.  510,  jip.  222, 

300. 
Kennon  v.  State,  7  Tex.  App.  32(!,  p.  .320. 
Kenrick  y.  Heppard,  23  Ohio  .St.  :j:i3,  pp. 

:5:59,  :542. 
Kent  V.  Charlestown,  2  Gray,  281,  p.  304. 
Kent  V.  Cran)i)ton,  3  I)yer,":!18,  \i.  108. 
Kent  V.  Tyson,  20  N.  H.'l21,  jij).  480,  500. 
Kci'by  V.  ('om.,  7  Leigh,  747,  pp.    174,  0:53. 
Kersehbaugher  V.  Slusser,  12  Ind.  453,  p. 

320. 
Kerwin  v.  I'eoi)Ie,  00  111.  200,  p.  21. 
Key  V.  lloleman,  2  I'ay,  315,  )).  .5:55. 
Kilgore  v.  Jordan,  17  Tex.  341,  ]).  5.57. 
Killen  v.  Sistrunk.  7   (ia.    28:5,    pj).    480, 

405,  400. 
Kimbrough  v.  State,  02  Ala.  248,  ]).  207. 
King  v.  Dale,  2  111.  513.  p.  2:53. 
King  V.  King,  40  <;a.  022,  )).  .540. 
King  y.  State,  21  lia.  220,  p.  204. 
King  V.  State,  5   How.    (.Miss.),   7:50,   pp. 

123,  210,  2.54.  2.55,  (;71,  710. 
King  V.  Stone,  0  Term  Kep.  527,  p.  351. 
King  y.  Wooler,  1  ISarn.  &  Aid.  103.  p.  13. 
Kiniren  v.  State,  40  Ind.  1:52,  pp.  :5:59,  342, 

.340. 
Kinloehs"  Case,  Foster,  22,  p.  352. 
Kinnicuttv.  Stockwell,  8  Gush.   73,    ]>. 

:540. 
Kirk  v.  State,  14  Ohio,  511,  p.  420. 
Kirk  v.  State,  13  sm.  &  .M.  400,  p.  722. 
Kitrol  V.  State,  0  Fla.O,  pp.571.  .580,00:!. 
Kilter  y.  People,  25  111.  42,  j).  :527. 
Kittridge  v.  Elliott,  10  X.  IL  77,  p.  484. 
Kleinbach  y.  State,    2    Speers,  418,    pp. 

KiO,  288,202,200. 
Klinger  v.  State,  13  Wall.  257,  p.  277. 
Kneeland  v.  State,  03  Ga.  041,  )>.  731. 
Knight  y.  Campbell,  02  Barb.  10,  p.  10. 
Knight  V.  Freejjort,  13  Mass.  218,  pp.  400, 

4:58. 
Knott  y.  Sargent,  125  Mass.  05,   pp.   705, 

700,  747. 
Knowles  v.  Kexroth,  07  Ind.  .50,  p.  320. 
Knvaston  v.  Shrewsbur-\-,  Andrews,   85, 

"l)p.  207,  280. 
Koch  v.  Slate,  ,32   Ohio  St.   352,  pp#  292, 

571,003,  (;07,  038. 
Koehler  v>  Cleary,  23  Minn.  .325,  j).  524. 
Koenig  v.  I5auer|  I  lirewst.  304,   pp.   337, 

;541. 
Koester  v.  Ottumwa,  .34  Iowa,  41,  p.  4.55. 
Krebs  V.  State,  8Tex.  Ai)p.  1,  pp.  :507,  :508. 
Kroer  v.  Peoi)le,  78  111.  204,  p.  200. 

L. 

Lacey  v.  state,  .58  Ala.  .385,  p.  32(i. 
Lacy  y.  State.  45  Ala.  80,  p.  102. 
Lad'd  V.  Wilson,  1  Ciai  eh  C.  C.  5,  p.  539. 
Lady  Herbert  v.  Shaw,  II  Mod.  118,  p. 

:i03. 
Lady  Joys  Case,  cited  1  Ld.  Kaym.  148, 

J).  470. 


TABLE  OF  CASES  CITED. 


XXX  / 


Lady  Northumbci-lancrs  Case,  2   Mod. 

182 ;  Lofft.  2U,  ]).  32. 
Lafavette,  etc.,  K.  Co.  v.   New  Albany, 

etc.,  K.  Co.,  13  Ind.  90,  pp.  .-549,  549. 
Lamb  v.  State,  4  Ohio  St.  U',~, )).  G. 
Lamb  v.  State,  36  Wis.  421,  pp.  282,  289, 

31(3. 
Lambertson  v.  People,  5  Park.    Cr.    R. 

200,  p.  87. 
Lampliier  v.  State,  TO  Ind.  317,  p.  .342. 
J^ane  v.  Goodwin,  47  Me.  593,  p.  338. 
Lane  v.  Scoville,  Ki  Kan.  402,  ]ip.  303,  342. 
Lansrworthy  V.  Myers,  4  Iowa,   IS,  i)p. 

48-!,  4!);). 
Larillian  v.  Lane,  8  Ark.  372,  p.  6. 
Larimer  v.  Kelly,  13  Kan.  78,  p.  458. 
Larkins  V.  Tarter,  3  Sneed,  C81,  pp.  542, 

551. 
Laura  v.  State,  2(5  Miss.  174,  p.  734. 
i^aurent  v.  State,  1  Kan.  313,  i>p.  716,  734. 
Lavin  v.  People,  («>  111.  303,  p.  192. 
Lawless  v.  Reese,  8  Bibb,  486,  p.  481. 
Lawrence  v.  Boswell,  Sayer,  100,   p.  540. 
Lawrence  v.  Collier,  1  Cal.  37,  p.  346. 
Layburn  v.  Crisp,  8  Car.  X-  P.  397,  p.  82. 
Layer's  Case,  16  How.  St.    Tr.    135,    pp. 

144,  229,  2S2,  2S6,  289,  315. 
Leach  V.  People,  53  111.  pp.  311,  216,  223. 
Leach  V.  Wilbur,  9  Allen,  212,  p.  429. 
Leathers  v.  State,  26  Miss.  73,  p.  626. 
I>ee  V.  Clute,  1  Xev.  151,  p.  .510. 
Lee  V.  Lee,  71  N.  C.  139,  p.  92. 
Lee  V.  McLeod,  15  Nev.  158,  jip.  440,  444, 

527. 
Lee  V.  Peter,  6  Gill  &  J.  447,  p.  296. 
Lee  V.  State,  45  Miss.  114,  pp.  217,  608,  734. 
Leech  V.  Lamb,  11  Exch.  437,  p.  15. 
Leer  v.  State,  2  Tex.  App.  495,  pp.  328,  329. 
Leiifhton  v.  Sargent,  31  N.   H.  120,  pp. 

457,  540. 
Lester  v.  Goode,  2  Murph.  37,  p.  .'542. 
Lester  v.  State,  2  Tex.  App.  432,  pp.  22, 

175,  176,  262,  265,  309. 
Leverett  v.  State,  3  Tex.  App.  213,  pp. 

509  510    515. 
Levinger  V.  lieg.,  L.  R.  3  P.  C.  282,  p.  19. 
Levy  V.  Brannan,  39  Cal.  485,  p.  509. 
Lewis  V.  McMuUin,  5  W.  Va.  582,  d.  542. 
Lewis  V.  Closes,  6  Cold.  193,  p.  551. 
Lewis  V.  People,  44  111.  452,  p.  372. 
Lewis  V.  State,  51  Ala.  1,  pp.  102,  328. 
Lewis  V.  State,  1  Head,  329.  p.  608. 
i^ewis  V.  State,  3  Head,  127,  pp.  87,301. 
Lewis  V.  State,  9  Smed.  &  U.  115,  pp.  208, 

275,  301. 
Lewis  V.  Wake  Co.,  74  N.  C.  194,  pp.  651, 

6.53,  6.59,  668,  673,  (587. 
Lewis'  Case,  7  How.  St.  Tr.  249,  p.  588. 
Licett  V.  State,  23  Ga.  57,  p.  2(38. 
Lightfoot  V.  People,  16  Mich.  507,  p.  664. 
Ligon  V.  State,  7  J'ort.  1(57,  pp.  632.  (333. 
Lincoln  v.  Stowell,  73  III.  24(;,  p.  79. 
Liudauer  v.  Teeter,  41  X.  J.  L.  256,  pp. 

541,  542. 
Lindley  v.  Kindan,4Blackf.  189,  p.  121. 
Lindsay  V.  McWilliain,  3  Craw.  &  Dix, 

(Irish  Cir.)  27,  p.  8. 
Lindsley  v.  People,  6  Park.  Cr.  R.  233,  p. 

296. 
Lingan  v.  Marbury,  1  Cranch  C.  C.  365,  p. 

281. 
Link  V.  State,  3  Heisk.  252,  p.  287. 
LLsle  V.  State,  6  Mo.  426,  p.  .303. 
Lithgow  V.  Com.,  2  Va.  Cas.  297,  pp.  204, 

216,  222,  223,  308. 
Little  V.  Birdwell,  21  Tex.  .597,  p.  .557. 
Little  V.  Com.,  25  Gratt.  521,  pp.  216,  739, 

745,  747. 
Little  V.  Lal-rabee,  2  Me.  .37,  p.  542. 
Little  .Schuvlkill  Nav.  Co.  v.  Richards, 

57  Pa.  St".  142,  pp.  472,  499. 


Littlefield  v.  Beamis,  5  Rob.  (La.)  145,  p. 

499. 
Livingston  v.   Cheatham,  1  . Johns.  61, 

p.  17. 
Livingston  v.    Columbian    Ins.    Co.,  2: 

Caines,  28,  p.  16. 
Livingston  v.  Heernaan,  9  Mart.  656,  p. 

3a5. 
Livingston  v.  Smith,  1  Johns.  141,  p.  16. 
Llovd  v.  McClure,  2  G.  Greene,  139,  pp. 

542,  553. 
Lloyd  V.  Xourse,  2  Rawle,  49,  p.  225. 
Lloyd  V.  State,  45  Ga.  57,  p.  2.33. 
Llovd  and  Carpenter,   Ite,  5    Penn.   L. 

J.  55,  pp.  5(39,  659,  6(55,  ()(58,  749. 
Lockwood  V.  State,  1  Ind.  161,  p.  699. 
Loeflier  v.  Keokuk  Packet   Co.,  7  Mo. 

Ajip.  185,  p.  254. 
Loeffner  v.  State,  10  Ohio  St.  598,  p.  218. 
Logan  V.  State,  .53  Miss.  431,  pp.  77,  99, 

102,  223,  229,  236. 
Longv.  Spencer,  78  Pa.  St.  303,  p.  17. 
Long  V.  State,  46  Ind.  582,  pp.  585,  622,  047, 

730. 
Longv.  State,  .56  Ind.  1.33,  p.  736. 
Lonsdale  v.  Brown,  4  Wash.  C.   C.   148, 

pp.  486,  495. 
Looper  v.  Bell,  1  Head,  373,  p.  317. 
Lord  V.  Brown,  5   Den.  345,  pp.  188,  234, 

2.55. 
Lord  Grey's  Case,  9  How.  St.  Tr.  128: 

s.  c,  Skin.  82,  p.  144. 
Lord  Peter  v.  Heneage,  12  Mod.  520,  p. 

4(59. 
Lore  v.  State,  4  Ala.  173,  p.  27.'). 
Lott  V.  Macon,  2  Strobh.  L.  178,  p.  482. 
Lotz  V.  Briggs,  50  Ind.  346,  pp.  471,  472. 
Louis  V.  Davis,  13  Johns.  227,  p.  69. 
Love  V.  Moodv,  (58  N.   C.  200,  pp.  .530,  .532. 
Lovell  V.  State.  45  Ind.  5.50,  pp.  047,  729. 
Lovett  V.  State,  00  Ga.  257,  pp.  221,  346. 
Low's  Case,  4  Me.  439,  pp.  (395,  731,  741. 
Lowe  V.  McCorkle,  8  West.  J..  J.  (34,  303. 
Lowenburg  v.  People,  5  Park.  Cr.  R.  414, 

pp.  208,  216,  232. 
Lucasv.  Cannon,  13  Bush,  050,  p.  540. 
Lucas  V.  Marine,  40  Ind.  289,  p.  388. 
Lucy  V.  State,  8  Mo.  134,  p.  718. 
Lung's  Case,  1  Conn.  428,  pp.   686,  689, 

090. 
Luster  v.  State,  11  Humph.  169,  pp.  407. 

408. 
Lutrell  V.  Maysville,  etc.  R.  Co.,  IS  B. 

Mon.  291,  pp.  419,  .524. 
Lycoming  Fire  Ins.  Co.  v.  AVard,  90  111. 

545,  pp.  223,  226. 
Lyles  v.  State,  41  Tex.  172,  pp.  176, 179, 

180,  265. 
Lyman  V.  People,  7  Bradw.  345,  p.  733. 
Lyman  v.  State,  45  Ala.  72,  p.  176. 
Lyon  V.  Commercial   Ins.  Co.,  2  Rob. 

(La.)  2(57,  p.  67. 

M. 

jMackey  v.  People,  2  Colo.  13,  pp.  07,  58L 
Mackey  v.  State,  3  (Jhio  St.  302,  p.  729. 
Madden  v.  State,  1  Kan.  340,  pp.  381,  538. 
Maddox  V.  State,  32  Ga.  581,  pp.  223,  224. 
Maduska  v.  Thomas,  6  Kan.  1.53,  p.  6. 
Maffett  V.  Tonkins,  6  N.  J.  L.  228,  pp.  116, 

119,  126. 
Magness  v.  Stew^art,  2  Coldw.  309.  pp. 

339,  343. 
Mahan  v.  State,  10  Ohio,  232,  pp.  1.52,  731. 
Maher  v.  State,  3  Minn.  444,  pp.  380,  387,. 

402. 
Maher  v.  State,  1  Port.  205,  pp.  67,  028. 
Maize  v.  Sewell,  4  Blackf.  447,  p.  214. 
Major  V.  PuUiam  3  Dana,  .583,  p.  339. 
Major  V.  State,  4  Sneed,.597,  p.  224. 


TABLE  OF  CASES  CITKD. 


Maloiie  V.  Stiiti>,  S  (;!i.40-i,  p.  :;(i.'>. 
Alaloiif  V.  Stato,  4;i  Ua.  .JKl,  p.  lli;. 
Malov  V.  fStato,  .U  Ti!X.  .V.ii),  \t.  •.'•_'. 
M.iin'V  V.  Slate,  S  Ti'X    App.  :iiil,  p.  JV.'i. 
Maiilialtaii  Co.  v.  l^ydit;,  2  Cuiucs,  ;JSO, 

p.  1.;. 
Xaiiiuii  V.  Klynn,  :5'.i  Conn.  3:10,  p.  :!()>. 
.Alauix   V.   Jhilonv,   7   Iowa,  81,  i)p.  51S, 

.V>:!. 
Manko  v.  P<>«>pU-,  17  linn,  lli;,  p.  •.>4:{. 
Mann  v.  Clifton, :!  lUacUf.  :!(il.  p.  :Vi.». 
Mann  v.  Kairlee,  41  Vt.  i;7-.>,  i>p.  :W(;,  :i:5S. 
-Mann  v.  »;iovor,  14  N.  J.    I..  l!».j.  pp.  ilS, 

■-'»;7,  IM. 
Mans.-ll  V.  lie;?.,  S  Kl.  t  151.  .54,  pp.  144, 

14:),  147,  •Ju7.2'.rs.  :!ii,  rix 
Mans.-U  V.  \Vobl),8  Kl.  .t  HI.  .'54,  p.  '27(;. 
.Manslield,  etc.  It.  Co.  v.  Clark,  'iJ  Midi. 

pp.  .51'.t,  UiJ'.t. 
Maplcd  V.  Park,  17  Conn.  :5.{S,  p.  73. 
Mapes  V.  People,  oH  III.  525,  pp.  .').•,  120. 
Mareli  V.  I'orlsniontli,  etc.  It.  Co.,  It)  N. 

II.  372,  p.  270. 
Mareli  v.  .State,  44  Tex.  64,  pp.  40(5,  407,  408, 

4<50. 
Maretzck  v.  Caukl\vell,2  Abb.  Pr.  (X. 

S.)  407;  s.  c,  5  Ilobt.  WO,  p.  201. 
Markliani  v.  Lee,  cited  1  Leon.  8>i,  p.  110. 
Marlin  v.  Stoekbridfre,  14  Tex.  Hi."),  p.  8. 
Mainocb  v.  .State,  7  Tex.  App.2(i'J,  p.  3GH. 
Mai-.sli  V.  Coppock, '.)  Car.  &  P.  480,  p.  l!)(i. 
Marsh  v.  Stato,  30  Miss.  (527,  pp.  274,  27.'). 
Maisliall  V.  Krugg,  2  A.  K.  Maisli.  30,  p. 

314. 
Martin  v.  EhrenCcls,  24  III.  187,  p.  540. 
.Martin  v.  Morelock,  32  111.  487,  pp.  391, 

400,  442. 
.Martin  v.  Peonle,  54  111.  225,  p.  40;>. 
Martin  v.  lleg'  12  Irish  L.  3'.)'.),  p.  185. 
Martin  v.  State,  25  Ga.  4;i4,  p.  205. 
Martin  v.  State,  9  Tex.  Ai>p.  2i)3,  D.  429. 
Martin  v.  State,  22  Tex.  214,  pp.  "603,  609. 
Martin  v.  State,  40  Tex.  19,  p.  328. 
Martin's  Case,  2  Leigh,  745,  p.  386. 
Martin  v.  Tidwell,  36  Ga.  332,  pp.  446,  527. 

.-)2S. 
Mason  v.  Russell,  1  Tex.  721,  pp.  523,  540, 

541, ,.557. 
.Alathis  V.  State,  18  Ga.  343,  p.  .5:}5. 
Matilda  v.  Mason,  2  Crancli  C.  C.  343,  p. 

254. 
Maton  V.  People,  15  111.  536,  pp.  148, 152, 

1.5:5. 
Matthews  v.  State,  6  Tex.  App.  23,  p.  93. 
May  V.  Khun,  27  Iowa,  365,  p.  270. 
May  V.  Milwakee,  etc.  It.  Co.,  3  Wis.  219, 

pp.  6,  10. 
Maynard  v.  Fellows,  43  X.  II.  2,55,  p.  500. 
McAfee  v.  State,  31  Ga.  41,  p.  52. 
McAllister  v.  Sibley.  25  Me.  474,  pp.  440, 

528. 
Mc.Vllistcr  V.  State,  17  Ala.  434,  p.  274. 
McArtlmr  v.  Carrie,  37  Ala.  75,  p.  13. 
McCampbell  v.  State,  9  Tex.  App.  124,  p. 

179. 
MeOann  v.  People,  88  111.  163,  p.  374. 
MeCann  v.  State,  9  Sined.   &  M.  465,  pp. 

.■;72,  380,  5:J7. 
McCarter  v.  Com.,  11  Leigh,  633.  pp.  :}70, 

:598. 
MeCarty  v.  Kitchen,  .59Ind.  .500,  p.  444. 
.McC-rirty  v.  MeCarty,  4  Kich.  L.  594,  pp. 

<58,  .525. 
MeCarty  v.  State,  26  Miss.  299,  pp.  99, 

274,  322. 
McCarver  v.  Pippin,  12  Heisk.  657,  p.  407. 
McCausland  v.  McCausland,  1  Yeates, 

372,  pp.  1!)9,  215,  :U\,  .556. 
McClary  v.  State,  75  Ind.  260,  pp.  429,  558, 

608,  615. 


McCloskey  v.  People,  5  Park.  Cr.  R.  :508, 

p.  122." 
McCluney  v.  Lockhart,  1  Bailey,  117,  p. 

5:55. 
McClure  v.  State,  1  Yerg.  2(M\,  pp.  :522,  ;J4(), 

(H7,73l,  7:53. 
MeCov  V.  State,  22  XvU.  :!os,  p.:jl8. 
MeCov,  Ex  parte,  (A  Ala.  201,  )>.  609. 
McCoikle  v.  15inns,  5  ISinn.  :540,  p.  :503. 
McCorkle  v.  State,  14  Ind.  40.  pp.  352,  360, 

394,  3.15. 
McCorniick  v.  Brooklield,  4  X.  J.  L.  69, 

pp.  5,  249. 
McCorniick  v.  Irwin,  35  Pa.   St.  Ill,  p. 

47f). 
McCrav  v.  Stewart,  10  Ind.  3:57,  p.  5:59. 
.MeCrearv  v.  (;oin.,  2:t  Pa.  St.  323,  p.  :$58. 
McCuller  v.  State,  49  Ala.  :59,  p.  329. 
McCiilloiigh  V.  Com.,  67   Pa.  St.  30,  jip. 

612,  0(;i,  0i;5,  667,  66S. 
McCnlly  v.  IJarr,  17  Serg.  &  R.  455,  p.  472. 
MeCune  v.  Com.,  2  Rob.   (Va.)  771,  pp. 

210,  226. 
McDaniels  v.  McDanicls,  40  Vt.  363,  pp. 

440,  527. 
McUermott  v.  Hoffman,  70  Pa.  St.  31,  pp. 

67,  1.50. 
McDonald  v.  Beall,  55  Ga.  288,  pp.  340, 

:541. 
MeOonahl  v.  Ilodge.  5  Ilayw.  a5,  p.  499. 
McDonald  v.  Shaw,  1  X.  J.  L.  6,  p.  112. 
3IcKlhanon  v.  People,  it2   111.369,  p.  611. 
McKlvin  V.  State,  30  Ga.  SCy'.),  p.  540. 
McElvoy  V.  State,  9  Xeb.  157,  pp.  584,  617, 

618. 
McFadden  v.  Com.,  23  Pa.  St.  12,  pp.  197, 

28.5,  297. 
McFadden  v.  Wallace,  38  Cal.  51,  p.  205. 
McGarry  v.  People,  2  Laas.  227,  pp.  72. >, 

731,7:53,7:54. 
McGill  V.  State,  34  Ohio  St.  22?,  pp.  41, 

333. 
McGowan  v.  State,  9  Y^erg.  184,  pp.  171, 

211,223,224. 
McGreggv.  State,  4  Blackf.  101,  pp.210, 

217. 
McGnffee  v.  State,  17  Ga.  497,  pp.  90,  92, 

225,  243,  342,  709. 
McGuire  v.  People,  2  Park.  Cr.  R.  148, 

pp.  65,  68. 
McGuire  v.  State,  37  Ala.  161,  pp.328,  329. 
McGuire  v.  State,  37  Miss.  369,  pp.  188, 

;501. 
McGunnegle  v.  State,  0  Mo.  367,  p.  32. 
Mclntire  v.  Hussey,  57  Me.  493,  pp.  406, 

440. 
Mcintosh  V.  Smith,  2  La.  An.  756,  p.  394. 
Mc-Intvre  v.  People,  .58  III.  5)4,  p.  372. 
Mcllvaiiie  v.  VVilkins,  12  X.  H.  474,  pp.  406, 

417. 
McKenzie  v.  State,  26  Ark.  334,  pp.  409, 

.5:59. 
McKinley  v.  Smith,  Hard.  167,  p.  .3:58. 
McKinnev  v.   People,  7  III.  540,  pp.  360, 

379,  :580,  731,  7:57. 
McKinnev  v.  Simpson,  51  Iowa,  662,  pp. 

340, 342. 
McKinney  v.  State,  8  Tex.  App.  626,  p. 

307. 
McLain  v.  State,  10  Yerg.  241 ,  pp.  380, 402. 
McLaren  v.  I5irdsong,  24  (ia.  265,  p.  205. 
McLellan  v.   Crofton,  6  Me.  307,  pp.  3:59, 

343. 
McLellan  v.  Richards,  13  Me.  82,  pp.  739, 

747. 
McMillan  v.  State,  7  Tex.  App.  142,  p.  295. 
McXiill  V.  McClure,  1  Lans.  32,  p.  2:55. 
McXamara  V.  Dratt,  40  Iowa,  4i3,  p.  531. 
McXeil  V.  State,  47  Ala.  498,  pp.  328,  :}2:t. 
Mct^uillen  v.  State,  8  Snied.  &  M.587,  pp. 

387,  589,  604,  617,  618. 


TABLE  OF  CASES  CITED, 


XXXlll 


McRae  v.  Tillman,  6  Ala.  486,  p.  329. 
McWatei-s  v.  State,  10  Mo.  167,  p.  718. 
Meade  v.  Smith,  '6  Conn.  346,  p.  .541. 
Means  v.  Means,  7  Rich.  L.  533,  p.  474. 
Meaux  v.  Whitehall,  8  Bradw.  173,  pp. 

202,  206,  309. 
Mechanics'  etc.  Bank  v.  Smith,  19  Johns. 

115,  pp.  247,  268. 
Medaris  v.  State,  10  Yerg.  239,  pp.  721, 

722. 
Medler  v.  State,  26  Ind.  17,  p.  .523. 
Meeker  V.  Potter,  5  N.  J.  L.  586,  p.  189. 
ISEeeks  V.  State,  57  Ga.  329,  p.  340. 
Mellish  V.  Arnold,  Bunbury,  51,  pp.  509, 

515. 
Melson  v.  Dickson,  63  Ga.  685,  pp.  181, 

312. 
Mench  V.  Bolbach,  4  Phila.  68,  pp.  407, 

418,  438. 
Mercer  v.  State,  17  Ga.  146,  p.  346. 
IMerrick  v.  State.  63  Ind.  327,  p.  79. 
Merrill  v.  Berkshire,  11  Pick.  269,  pp.  304, 

426,  528. 
Merrill  v.  Nary,  10  Allen,  416,  pp.  491,  492, 

493. 
Mershon   v.  State,  51  Ind.  14,  pp.  592,  608, 

609,  615.  616,  617. 
Meyer  v.  Foster,  16  Wis.  294,  pp.  373,  3S0. 
Meyer  v.  State,  19  Ark.  156,  pp.  216,  223, 

339,  340,  346. 
Meyers  v.  State,  20  Ind.  510,  p.  299. 
Miami  Valley  Furniture  Co.  v.  Wesler, 

47  Ind.  65,  p.  347. 
Michigan  etc.  K.  Co.  v.  Barnes,  40  Mich. 

383,  p.  187. 
Middletown  v.  Ames,  7  Vt.  166,  p.  185. 
Miers  v.  State,  56  Ind.  366,  pp.  582,  622, 

645. 
Mikell  V.  State,  62  Ga.  36'',  pp.  323,  624. 
Milan  V.  State,  24  Ark.  346,  p.  251. 
Miles  V.  Pulver,  3  Den.  84,  p.  124. 
Miles  V.  Rose,  Hempst.  37,  p.  314. 
Miles  V.  State,  1  Tex.  App.  510,  p.  328. 
Miles  V.  United  States,  103  U.  S.  301;  s.  c, 

2  Utah,  19,  pp.  235,  311. 
Millar  v.  Ouddy,  43  Mich.  273,  p.  483. 
Miller  v.  Hampton,  37  Ala.  342,  p.  488. 
Miller  v.  Mabon,  6  Iowa,  456,  pp.  353,  389. 
Miller  v.  State,  2  Kan.  174,  p.  734. 
Miller  v.  State,  33  Miss.  3.56.  pp.  620,  646. 
Miller  v.  Wild  Cat  Gravel  Rd.  Co.,  52 

Ind.  51.  p.  188. 
Miller  v.  Wilson,  24  Pa.  St.  114,  p.  324. 
Milo  V.  Gardinei-,  4  Me.  .549,  p.  3.55. 
Mima  Queen  v.  Hepburn,  2  Cranch  C.  C. 

3,  pp.  177.  249. 
Mima  Queen  v.  Hepburn,  7  Cranch,  290, 

pp.  177,  206,  283. 
Minims  V.  State,  16  Ohio  St.  221,  pp.  308, 

309. 
Miner  v.  Brown,  20  Conn.  5  9,  p.  165. 
Mingia  V.  State,  54  111.  274,  p.  335. 
Minor  v.  State,  63  Ga.  318,  pj).  632,  709. 
Mirick  Y.  Hemphill,  Hempst.  179,  p.  542. 
Missouri  etc  K.  Co.  v.  Munkers,  11  Kan. 

223,  pp.  191,  343. 
Mitchell  V.  Carter,  14  Hun,  448,  pp.  481, 

489. 
Mitchell  V.  Denbo,  3  Blackf.  259,  pp.  114, 

123. 
Mitchell  V.  Ehle,  10  Wend.  595,  p.  509. 
Jlitchell  V.  Likens,  3  Blackf.  258,  pp.  114, 

123. 
Mitchell  V.  =tate,  58  Ala.  417.  pp.  102,  320. 
Mitchell  V.  State,  22  Ga.  211,  pp.  264,  ,347. 
Mitchell  V.  state,  43  Tex.  512,  pp.  131, 289. 

295,  300. 
Jlitchum  V.  State,  11  Ga.  615,  p.  346. 
Mitten  v.  Smock,  3  N.  J.  L.  911,  p.  8. 
Muilit  V.  Rogers,  15  Iowa,  4.53,  p.  5.54. 
Alohler  v.  State,  24  111.  26,  pp.  709,  732. 


Moncrief  v.  State,  59  Ga.  470,  pp.  338,  346. 
Monday  v.  State,  32  Ga.  672,  pp.  208,  264. 
Monroe  v.  State,  5  Ga.  88,  pp.  338,  538. 
Monroe  v.  State,  23  Tex.  210,  pp.  203,  226. 
Montague  v.  Com.,  10  Gratt.  767,  pp.  148, 

178,  204,  208,  269,  270,  275. 
Montague  v.  Smith,  17  Q.  B.  688,  ]i.  13. 
Montague  v.  State,  17  Fia.  622,  p.  216. 
Montgomery  v.  State,  3  Kan.  263,  p.  321. 
Montgomery  v.  Tillotson,  1  How.  (Miss.) 

215,  p.  328. 
Mootly  V.  Pomeroy,  4  Denio,  115,  pp.  420. 

aioore  V.  Cass,  12  Kan.  288,  pp.  38,  343. 
Moore  V.  Edmiston,  70  N.  C.  471,  pp.  530, 

531,  532. 
Moore  v.  Philadelphia  Bank,  5  Serg.  & 

R.  41,  p.  347. 
Moore  v.  State,  52  Ala.  424,  p.  329. 
Moore  V.  State,  13  Smed.  &  M.  259,  pp.  718, 

Moran  v.  Com.,  9  Leigh.  651,  pp.  218,  226. 
Morgan  v.  Com.,  14  Bush,  106,  p.  268. 
Morgan  v.  State,  19  Ala.  557,  pp.  606,  729, 

730,  731,  733. 
Morgan  v.  State,  48  Ala.  65,  p.  102. 
Morgan  v.  State,  31  Ind.  193,  p.  216. 
Morgan  v.  Stevenson,  6  Ind.  169,  p.  216. 
Morlin  v.   Stockbridge,  14  Tex.   165,  p. 

325. 
Morris  v.  Graves,  2  Ind.  354,  p.  380. 
Morris  v.   Howe,  36  Iowa,  490,  pp.  496, 

498,  555. 
Morris  v.  State,  7  Blackf.  607,  p.  296. 
Morjis  V.  Vivian,  10  Mees.  &  W.  137,  pp. 

454,  455. 
Morris'  Case,  4  How.  St.  Tr.  1255,  p.  283. 
Morrissey  v.  People.  Jl  Mich.  327,  p.  664. 
Morrison  v.  Lovejoy,  0  Blinn.  319,  pp.  251, 

253,  316. 
Morrison  v.  McKiunon,  12  Fla.  552,  pp. 

184,  305.  346. 
Morrison  v.  Moreland,  15  Serg.  &R.  61,  p. 

181. 
Morrow  v.  Comrs.,  21  Kan.  484,  pp.  3.55. 

387. 
Morton  v.  State,  1  Kan.  468,  pp.  241,  308, 

309. 
Morton  V.  State,  1  Lea  (Tenn.),  498,  p. 

433. 
Morton  v.  State,  3  Tex.  App.  510,  p.  325. 
Morvey  v.  Maynard,  4  Up.  Can.  Q.  B. 

(O.  S.)  323,  p.  14. 
Moses  V.  State,  10  Humph.  456,  pp.  219, 

224,  228. 
Mosseau  v.  Veeder,  2  Oreg.  113,  p.  79. 
Moughon  V.  State,  59  Ga.  308,  pp.  221,346, 

540. 
Mounsen  v.  West,  1  Leon.  88,  pp.  110, 181. 
Mountfort  v.  Hall,  1  Mass.  443,  p.  157. 
Mowry  v.  Starbuck,  4  Cal.  274,  p.  73. 
Moyers  v.  State,  11  Humph.  40,  pp.  718, 

720,  722. 
Mt.  Desert  v.  Cranberry  Isles,  46  Me.  411, 

pp.  339,  34 1. 
Mueller  v.  Rebhan,  94  111.  142,  pp.  92,  284. 
Muirhead  v.  Evans,  6  Exch.  447,  pp.  5,11, 

309. 
Mulcahy  v.  Reg.  Irish  Rep.  1  C.  L.  12, 

p.  38. 
Mullen  V.  Morris,  2  Pa.  St.  85,  p.  471. 
Mullen  V.  State,  50  111.  169,  p.  619. 
Mulligan  v.  State,  47  Miss.  304,  p.  734. 
MuUins  V.  Cottrell,  41  Miss.  291,  p.  536. 
Muloch  V.  Lawrence,  5  City  Hall  Rec.  84, 

pp.  510,  514. 
Munde  v.  Lambie,  125  Mass.  367,  pp.  481, 

482. 
Munly  v.  State,  7  Blackf.  593,  p.  296. 
Munroe  v.  Brigham,  9  Pick.  368,  pp.  324, 
339. 


id) 


XXXIV 


TABLE  OF  CASES  CITED. 


MunshowtT  V.  I'atton,  10  Serg.  &  U.  334, 

pp.  110,  111. 
Mmchisoii  V.  Marsli,'.J  KciT,  (N.  D.)  608, 

p.  J 10. 
MiiiiUuk  V.  Smniier,  ii  Pick.  1»(J,  i).  510. 
Murpliy  V.  Com.,  I  Meti-.  (Ky.)  'Mo,  pp. 

.s,  11 
Miirjiliv  V.  Kipp,  1  DutT,  (Viil,  p.  1(1. 
.AliiiphV  V.  IVoplo,  37  111.  447,  p.  :5S. 
Murpliv  V.  ."^talc,  37  .Mil.  14-2,  i)p.  -llCi,  -2^0. 
MurphV  V.  .state,  54  Ala.  17S,  p.  32'.i. 
Miisifk  V.  IVoplu,  40  111.  -ilis,  pp.  l'.)l,  ."iS'.l, 

0311. 
Myeis  V.  Com.,  79  Pa.  St.  303,  pp.  227, 2-29. 
Myers  V.  State,  7  T-X.  App.  040,  pp.  194, 

3o;i. 
Mvloc-k  V.  Salailiiie,  1  \V.  151.  4^0,  pp.  191, 

•214. 
Myiiatt  V.  Iliibbs,  0  Ileisk.  320.  p.  4.r2. 

X. 

Nadenbousch  v.  Sharer,  4  W.  Va.  203.  p. 

347. 
^'a^^l)  V.  State,  2  Tex.  App.  362,  pp.  340, 

347. 
Xasliville  V.  Shepherd,  3  IJaxt.  373,  pp. 

17,  27. 
National   B<ank  v.  National  Bank,  7  W. 

Va.  .'544,  p.  67.5. 
Xeal  V.  State,  103  U.  S.  ,370 ;  s.  c,  10  Cent.  L. 

J.  514  ;  23  Alb.  L.  J.  44t>,  pp.  2;»,  610. 
Xed  V.  State,  7  Poner,  187,  p.  226. 
Ned  V.  State,  33  Miss.  364,  pp.  406,  407, 

.537. 
Neelv    V.  People,  13   111.    685;   s.    c,  11 

liuniph.  232,  pp.  219,  223,  224. 
Xeff  V.  Xetf,  1  15inn.  350.  p.  16. 
Xejrro   Jerry    v.   Townshend,    pp.   472, 

477. 
Xeil  V.  Abel,  24  Wend.  1&5,  pp.  481.  489. 
Xeluis  V.  State,  13  Snied.  &  M.  500;  pp. 

215,  226,  430,  431. 
Xels  V.  State,  2  Tex.  2S0,  p.  326. 
Xelson  V.  Dickson,  63  Ga.  682,  p.  17. 
Nelson  v.  State,  57  Miss.  286,  pi).  174, 175. 
Xelson  V.  State,  32  Tex.  71,  p.  3.i3. 
Nesmith  v.  Atlantic  Ins.  Co.,  8  Abb.  Pr. 

423,  p.  16. 
Nesmith  v.  Clinton  Fire  Ins.  to.,  8  Abb. 

Pr.  141,  pp.  407,  440,  441,  537. 
Xewcll  V.  Ayer,  32  Me.  ,334,  p.  523. 
Xewkirk  v.  State,  27  Ind.  1,  pp.  490,  491, 

493. 
Newman  t.  Graham,  11  C.  B.  I,i3,  p.  13. 
Newman  v.  State,  43  Tex.  525,  pp.  581, 

585,609. 
Newman  v.  State,  14  Wis.  393,  pp.  578, 

603,  608,  617. 
New  Orleans  etc.  R.  Co.  v.  Hemphill, 

35  Miss.  17,  p.  174. 
New  York  V.  Mason,  4  E.  D.  Smith,  142, 

p.  323. 
Xiculls  V.  Foster,  89  111.  386,  p.  540. 
Xicholls  V.  State,  5  N.J.  L.  .5.J9,  p.  628. 
Nichols  V.  Alsop,  10  Conn.  263,  p.  ,i27. 
Nichols  V.  Bronson,  2  Dav,211,  p.  415. 
Nichols  V.  State,  65  Ind.  .6)2,  p.  471. 
Nichols  V.  State,  46  Miss.  284,  pp.  608,7-54. 
Nichols  V.  Suncook  Man.  Co.,  24  N.  II. 

437, p.  541. 
Ninis  V.  Bigelow,  44  X.  II.  376,  p.  392. 
Nininger  v.  Knox,  8  Minn.  140,  pp.  391, 

392. 
Noble  v.  People,  1  111.  29,  p.  214. 
Noble's  Case,  15   How.  St.  Tr.  731,  p.  151. 
Noe  V.  State,  4  How.  (Miss.)  330,  p.  219. 
Nolan  V.  Vosburg,  3  Bradw.  5'.)6,  p.  481. 
Nolen  V.  State,  2  Head,  520,  pp.  276,  300, 

433,  435. 


Nolen  V.  State,  9  Tex.  App.  4  9,  pp.  25„ 

179. 
Noles  V.  State,  24  .Ma.  172,  p.  731. 
Nonia<ine  v.  Peoi)le,  1   111.   109,  pp.  345, 

713. 
Norbury  v.   Kennedy,    Crnwf.   it    Dix, 

(Ir.)"  Cir.  124,  p.  132. 
Xortlcet  V.   State,  4  Snecd,  340,  pp.  220.. 

223.  238,  305. 
Norniati   v.    Beamont,  Willos,  484,    pp. 

122,  330,  3.32. 
Norris  v.  Cook,  1   Curt.  C.  C.  464,  p.  426. 
Xorris  v.  State,  3  Humph.  333.  p.  .543. 
Norris  Mouse  v.  State,  3  (i.  Greene,  513, 

pp.  615,  617,  64h. 
Norton  v.  .McLearv,  8  Ohio  St.  205,  p.  1((. 
Norval  v.  Kice,  2  VVis.  23,  p.  10. 
Niidigate  v.  I)(,-rbv.  2  Dyer,  107.  p.  108. 
Nugent  v.  State,  19  Ala.  540,  pp.  006,  619, 

729,  730. 
Nugent  V.  Trepagnier,2  Martin,  205,  pp- 

195,  283. 

o. 

Oates'  Case,  10  How.  St.  Tr.  1082,  pp.  169, 

•2S2. 
Oatis  V.  Brown. ,59  Ga.  711,  p.  540. 
O'Barr  V.  Alexander,  37  Ga.  195.  p.  451. 
O'Brian  v.  Com.,  \)  Bush,  333,  p.  306. 
O'Brien  v.  Merchants'   Fire  Ins.  Co.,  6 

Jones  &  Sp.  482,  pp.  481,  485.  497. 
O'Brien  v.  Minneapolis,  22  Minn.  378,  pp> 

13,  17. 
O'Brien  v.  People,  36  N.  Y.  276;  s.  c.,4S 

Barb.  274,  pp.  205,208,  232,  251. 
O'Brien  v.  Vulcan  Iron   Works,  7  Mo. 

ApYi.  257,  pp.  275,299. 
O'Byrnes  v.  State,  51  Ala.  25,  pp.  583,  620. 
O'Byrne  v.  State,  29  Ga.  36,  p.  150. 
O'Coiglv's  Case,  26  How.  St.  Tr.  1191,  pp. 

146,  229,  286. 
O'Connell  v.  Mansfield,  9  Irish  L.  179,  p. 

312. 
O'Connell  v.  Reg.  11  CI.  &  Fin.  155,  p.  607. 
O'Connell  v.  Reg.  11  CI.  &  Fin.  3.5.3,  p.  104. 
O'Connor  v.  Guthrie,  11  Iowa,  80,  p.  421. 
O'Connor  V.  State,  9  Fla.  215,  pp.  91,92, 

184,216,296,317.319. 
Odle  V.  State,  Baxt.  1.59,  p.  453. 
Odoni  V.  Gill,  59  Ga.  180.  p.  75. 
Oftit  V.  Vick,  Walker,  9!),  pp.  355,419. 
Ogden  V.  Parks,  16  Johns.  180.  p.  2,52, 
Ogle  V.  State,  33  Miss.  383,  pp.  228,  309. 
O  llara  V.  People.  41  Mich.  623.  pp.  664. 
O'Hara  v.  Richardson,  46  Pa.  St.  38.5,  pp. 

472,  483,  486. 
Oldham  v.  Hill,  5  J.  J.  Marsh.  300,  p.  6. 
Olesoii  V.  Meader.  40  Iowa.  662.  p.  527. 
Olive  V.  Guin,  2  Sidei-fln.  145,  p.  469. 
Omaha  v.  01m.stead,  5  Neb.  446;  s.  c,  16- 

Am.  L.  Reg.  356,  p.  185. 
O'Mara  v.  Com.,  75  Pa.  St.  424,  pp.  215, 

228. 
O'Mealy  v.  State,  I  Tex.  App.  108,  pp.  338, 

343. 
Oneal  v.  State,  47  Ga.  229,  p.  182. 
O'Neal  V.  Calhoun,  67  111.  219. 
Opothle-Yoholo  v.  Mitchell,  2  Stew.  & 

I'ort.  125.  p.  149. 
Oram  v.  Bishop,  12  X.  J.  I.,.  153,  p.  355. 
Orcutt  V.  Carpenter,  1  Tyler,  250,  pp. 

173,  339,  445. 
Oregon,  etc.   R.  Co.    v.  Oregon    Steam 

Xav.  Co.,  S  Oreg.  178,  p.  543. 
Organ  v.   State,  26  Miss.  78,  pp.  369,  406,. 

537. 
Orme  v.  Pratt,  4  Cranch  C.  C.  124,  pp. 

339,  343. 
Onok  V.  Com.  Ins.  Co.,  21  Pick.  456,  pp. 

304,  528. 


TABLE  OF  CASES  CITED, 


XXXV 


Ortwein  V.  Com.,  76  Pii.  St.  4U,  pp.  227, 

228. 
Osgood  V.  State,  63  (in.  791,  p.  338. 
O'Shields  v.  State,. "iS  Ga.  69(),  pp.  347,  451. 
Osiander  v.  Com.,  3  Leigh,  780,  pp.  214, 

218,  222. 
Ossipe  Man.  Co.  v.  Canney,  54  N.  H.  295, 

p.  291. 
<.)ttinger  v.  Ottinger,  17  Serg.  &  R.  142, 

p.  478. 
•Oultonv.  Morse,  2  Kerr  (N.  B.),  77,  p.  110. 
Overbee  v.  Com.,1  Hob.   (Va.)   756,  pp. 

380,  400, 403. 
Overshiner  v.  Com.,  2  B.  Mon.  344,  p.  708. 
Owens  V.  State,  2  Head,  455,  p.  608. 
4J\ven  V.  Warburton,  1  Bos.   &  Pul.  (X. 

11.)  326,  pp.  513,  514,  515,543. 


Tackard  v.  United  States,  1  G.  Greene, 

225,  pp.  553,554. 
Paddock  V.  Wells,  2  Barb.  Cli.  331,  pp. 

180,  181. 
Page  V.  Com.,  27  Gratt.  954,  p.  226. 
Page  V.  Contocook  V'alley  R.  Co.,  21  X. 

H.  438,  pp.  1S7,  338. 
Page  V.  Danvers,  7  Mete.  326,  p.  323. 
I'age  V.  Pearce,  8  Mee.  *  W.  667.  p.  15. 
Page  V.  Wheeler,  5  X.  H.  91,  pp.  486,  495, 

498. 
Paige  V.  O'Xeal,  12  r-al.  483,  p.  247. 
Palmer  v.  People,  4  Xeb.  68,  pp.  220,  240, 

307. 
Pahnore  v.  State,  29  Ark.  248,   pp.  329, 

413,  458,  465,  485,  490. 
Pannell  v.  StHte,29Ga.  681,  pp.  299,  301. 
Papineau  v.  Belgarde,  81  111.  61,  pp.  510, 

515. 
Parchman  v.  State,  2  Tex.  App.  228,  p. 

226. 
Parhani  v.  Harney,  6  Smed.  &  M.  55,  pp. 

509,  510,  515,  517. 
Paris  V.  State,  36  Ala.  232,  p.  102. 
Parker  v.  State,  34  Ga.  262,  p.  200. 
Parker  v.  State,  .55  Miss.  414,  pp.  304,  343. 
Parker  v.  State,  18  Ohio  St.  88,  p.  364. 
Parker  V.  Thoroton,   1  Stra.  640;  s.  c,  2 

Ld.  Ravm.  1410,  p.  330. 
Parkinson"  v.  Parker,  48  Iowa,  667,  p.  347. 
Parks  V.  State,  4  Ohio  St.  2.i4,pp.  304,  619, 

729,  731. 
Parkyn's  Case,  13  How.  St.  Tr.  75,  p.  286. 
Parmele  v.  Guthrey,  2  Root,  185,  p.  303. 
Parniele's  Case,  2  Mart.  313,  p.  175. 
Parmlee  v.  Sloan,  37  Ind.  469,  p.  388. 
Parmer  v.  State,  41  Ala.  41'i,  p.  647. 
Parr  v.  Seames,  Barnes'  Xotes,  438,  pp. 

509,  514. 
Parrott  v.  Thacher,  9  Piek.  426,  p.  546. 
Parsons  v.  Hnff,  58  Me.  137,  p.  383. 
Parsons  v.  State,  pp.  275,  277. 
Passenger  etc.  R.  Co.  v.  Young,  21  Ohio 

St.  518,  p.  92. 
Pasauka  v.  Daus,  31  Tex.  72,  pp.  60,  321. 
Patchin  v.  Sands,  10  Wend.  570,  p.  16. 
Pate  V.  People,  8  111.  644,  p.  360. 
Patterson  v.  State,  7  Ark.  59,  pp.  317,  328. 
Patterson  v.   State,  70  Ind.  341,  pp.  339, 

341. 
Patterson's  Case,  6  Mass.  486,  pp.  72,  629. 
Patton  V.  Ash,  7  Serg.  &  R.  116,  p.  292. 
Payne  v.  McLean,  1  Up.  Can.  K.  B.  (O.  S.) 

444,  p.  1.32. 
Payne  v.   State,  3  Humph.  375,  pp.  217, 

220,  223,  224. 
Peacham  v.  Carter,  21  Vt.  515,  p.  486. 
Pearse  v.  Rogers,  2  Post.  &  Fin.  137,  pp. 

198,  246. 
I'earson   v.    AVightman,  1  Mills  Const. 

Rep.  336,  p.  339. 


Peck  V.  Brewer,  48  111.  54,  pp.  540,  547. 
Peck  V.  State,  63  Ala.  201,  p.  578. 
Peifferv.  Com.,  15  Pa.  St.  468,  p.  394. 
Peire  v.  Martin,  14  La.  64,  p.  525. 
Pekin  V.  Winkel,  77  111.  56,  pp.  511,  516, 

517. 
Pelham  v.  Page, 6  Ark.  .5.35,  pp.  .534,  5.58. 
I'ender  v.  People,  18  Hun,  560,  p.  243. 
Pen  Held  V.  Carpender,  13  Johns.  350,  p. 

482. 
Peninsular  R.  Co.  v.  Howard,  20  Mich. 

18,  p.  187. 
Penn.  Hall,  /Je,  5  Pa.  St.  204,  p.  1.57. 
Pennell  v.  Pereival,  13  Pa.  St.  197,  p.  300. 
People  V.  Ah  Chung,  54  Cal.  398,  pp.  121, 

209. 
People  V.  Ah  You,  47  Cal.  124.  p.  296. 
People  V.  Aichinson,  7  How.  Pr.  241,  p. 

148. 
People  V.  Albany,  6  Wend.  548,  p.  .318. 
People  V.  Allen,  43  X.  Y.  28,  pp.  203,  211, 

212. 
People  V.  Arceo,  30  Cal.  40,   pp.  178,  277 

298,  299,  300.  « 

People  V.  Arnold,  15  Cal.  476,  p.  615. 
People  V.  Atherton,  51  Cal.  495,  p.  268. 
People  V.  Backus,  5  Cal.  275,  pp.  254,  380. 
People  V.  Barker,  2  Wheeler  Cr.  C.  19, 

pp.  513,  514. 
People  V.  Beatty,  14  Cal.  566,  pp.  615,  617, 

662. 
People  V.  Bennet,  37  X.  Y'.  117,  pp.  613, 

731,  733. 
People  V.  Blackwell,  27  Cal.  65,  p.  734. 
People  V.  Bodine,  1  Den.  306,  pp.  196,222, 

239,  247,  249,  251,  252,  265,  266,  268,  270, 

308. 
People  V.  Boggs,  20  Cal.  432,  pp.  407.  408. 
People  V.  Bonney,  19  Cal.  426,  pp.  354, 

,370,  ,380,  .520. 
People  V.  Briggs,  60  How.  Pr.  17,  pp.  693, 

726. 
People  V.  Brannigan,  21  Cal.  .340,  p.  538. 
People  V.  Brotherton,  43  Cal.  530,  pp.  225, 

268. 
People  V.  Brown,  48  Cal.  2.53,  p.  229. 
People  V.  Buckley,  49  Cal.  241,  p.  247. 
People  V.  Butler,  8  Cal.  435,  p.  646. 
People  V.  Carabin,  14  Cal.  438,  p.  584. 
People  V.  Carnal,  1  Park.  Cr.  R.  256,  pp. 

432,  5  0. 
People  V.   Christie,  2  Park.  Cr.  R.  579; 

s.  c,  2  Abb.  Pr.  256,  pp.  202,  214,  261. 
People  V.  Clark,  23  Hun,  374,  p.  11. 
People  V.  Coffnian,  24  Cal.  230,  p.  311. 
Peoiile  V.  Colby,  54  Cal.  37,  pp.  578,  582, 

701. 
People  V.  Colmere,  23  Cal.  631,  p.  615. 
People  V.  Colson,  49  Cal.  679,  p.  268. 
People  V.  Colt,  3  Hill,  432,  pp.  80,  89,  90. 
People  V.  Cotta,  49  Cal.  166,  pp.  177,  2.50. 
People  V.  Cottle,  G  Cal.  227,  pp.  225,  228. 
People  V.  Coyodo,  40  Cal.  586,  pp.  98,  130. 
People  V.  Crowey,  56  Cal.  36,  p.  573. 
People  V.  Cuintano,  15  Cal.  327,  p.  583. 
People  V.  Cummings,  3  Park.  Cr.  R.  343, 

pp.  68,  89,  90,  323. 
People  V.  Damon,  13  Wend.  351,  pp.  208, 

301. 
People  V.  Davis,  47  Cal.  93,  p.  78. 
People  V.  Deviue,  46  Cal.  46,  p.  78. 
People  V.  Dewick,  2  Park.  Cr.  R.  230,  pp. 

249,  250,  .552. 
People  V.  Dick,37  Cal.  277,  p.  247. 
People  V.  Itillon,  17  Hun,  1,  p.  13. 
People  V.  Doe,  1  Mich.  453,  pp.  246,  247, 

2.il,  305. 
People  V.  Douglas,  4  Cow.  26,  pp  354,, 358, 

364,  457. 
People  V.  i:arne«t,  45  Cal.  29,  p.  627. 
People  V.  Edwards,  41  Cal.  640,  p.  225. 


XXXVl 


TABLE  OF  CASES  CITED. 


I'ooiilc  V.  Fi-cciniui,  4  Den.  0,  pi>.  247,28-t- 
rcDplc  V.  Fiilli  r,  J  raik.  Cv.  li.  10,  pp. 

I-.',!,  Jis,  i.vj. 
People  V.  tiiiffnev,  14  Abb.  Pr.  (X.  S.)  36, 

pp.  415,  liKi,  .vj:?. 
People  V.  Gatewoiul,  20  Cal.  146,  pp.  309, 

(•.4(;. 
People  V.  Giillnfrlier,.')5  Cal.  462,  p.  625. 
People  V.  Gar  .Soy,  23  Alb.  L.  J.   41ti,  pp. 

202,  262. 
People  V.  Gaunt,  23  Cal.  156,  p.  309. 
Peoi)le  V.  Gelir,  S  Cal.  359,  pp.  225,  228, 

236. 
People  V.  Graham,  21  Cal.  261,  p.  191. 
People  V.  Green,  1  Utali,  11,  p.  644. 
People  V.  Grittiii,  2  Barb.  427,  p.  018. 
People  V.  Guernsey,  3  Johns.  (Jus.  265,  p. 

7.;3. 

People  V.  Ilarilin,  37  Cal.  258,  p.  247. 
I'eople  V.  Harriot,  3  Park.  Cr.  It.  112,  pp. 

45,  623. 
People  V.  Hurtung,  4  Park.  Cr.  K.  256,  pp. 

432,  .541,  547. 
People  V.  Haves,  1  Edm.  Sel.  Cas.  585, 

pp.  171,  224. 
People  V.  Ileffernan,  5  Park.  Cr.  R.  393, 

p.  662. 
People  V.  Henderson,  28  Cal.  466,  p.  270. 
People  V.  Henries,  1  Park.  Ci\  li.  579,  p. 

148. 
People  V.  Hettick,  1  Wheeler  Cr.  C.  399, 

p.  214. 
People  V.  Hidden,  32  Cal.  455,  pp.  615, 

(U3. 
Peoi)le  V.  Iloldridgc.  4  Lans.  511,  p.  83. 
People  V.  Honevnian.  3  L)en.  121,  pp.  211, 

219,  247,  250,  251,  260,  278,  284. 
People  V.  Ilortoii,  4  Park.  Cr.  li.  222,  p. 

062. 
People  V.  Hosnier,  1  Wend.  297,  p.  542. 
People  V.  Howell,  4  .Johns.  296,  p.  151. 
People  V.  Hughes,  29  Cal.  2.57,  p.  5.56. 
People  V.  Hulbut,  4  Den.  133,  pp.  695,  726, 

744.  745,  746. 
People  V.  Hunter,  54  Cal.  05,  pp.  012,  646. 
People  V.  Hurst,  41  Mich.  328,  p.  5. 
People  V.  Hyler,  2  Park.  Cr.  K.  566, 

002,  698. 
People  V.  Jenks,  24  Cal.  11,  p.  296. 
People  V.  Jewett,  3  Wend.  314,  pp. 

589,  ()(I4,  605,  022,  63s. 
People  V.  Jewett,  6  Wend.  386,  p.  .339. 
People  V.  Johnson.  2  Wheeler  Cr.  Cas. 

361,  pp.  214,216,218. 
People  V.  Johnston,  46  Cal.  78,  pp.  219, 

225,  236. 
People  V.  Johnston,  48  Cal.  .549,  p.  716. 
People  V.  Jones,  24  Mich.  215,  pp.  72,  73, 

79,  064. 
People  V.  Justices,  20  Johns.  310,  p.  71. 
I'eople  V.  .Justices.  74  X.  Y.  400,  p.  11. 
People  V.  Kelly,  40  Cal.  357,   pp.  390.  408, 

,582,  647. 
People  V.  Kennedy,  2  Paik.  Cr.  U.  312, 

p.  6. 
People  V.  King,  27  Cal.  507,  pp.  216,  222, 

228. 
People  V.  King,  28  Cal.  265.  pp.  0a5,  725. 
People  V.  King,  2  ('aines,98,  p.  (i44. 
Peoi)le  V.  Kuai)p,  42  Mich.  207,  ii.  429. 
I'eoi^le  V.  Knickerbocker,  1  I'urk.  Cr.  II. 

302,  pp.  20*,  308.. 
People  V.  Koh  e,  4  Cal.  199,  p.  290 
People  V.  Lane,  6  Abb.  Pr.  (X.  S.)  105,  pp. 

6,  10,  682. 
People  V.  Larned,  7  X.  Y.  445,  pp.  288, 300. 
People  V.  Lawrence,  21  Cal.  368,  pp.  682, 

711,710. 
People  V.  Lee,  5  Cal.  3.53,  p.  191. 
People  V.  Lee,  17  Cal.  76,  pp.  87,  400. 
People  V.  Lee,  2  Utah,  441,  p.  734. 


pp. 


117 


People 

247. 

People 

Peoi>le 

Peoi)le 

I'eople 

223, 

People 

I'eople 

228 

People 

I'eople 

08. 

Peojjle 
I'eople 
I'eople 

391 , 
Peoi)le 
People 

p.  1 
People 
I'eoiJle 

309. 
Peoi)le 

2h4. 
People 
People 

pp. 
People 
People 

p.  2 
People 
People 
People 
I'eople 

20S. 
Peojtle 

421, 
I'eople 
People 
I'eople 

358, 
Peorle 

268. 
People 

368. 
People 
People 

201. 
People 

216, 
People 

093. 
People 

osi. 
People 

pp. 
Peoiile 

282 
Peoi)le 

370, 
People 
I'eople 
I'eople 

207. 
People 
I'eople 

339. 
People 
P(!()ple 
People 
People 

3S0, 

People 

720, 
People 

024, 
People 

308. 
People 

303, 


V.  Lohnian,  2  IJarb.  450,  pp    203, 

V.  Lope/,,  26  Cal.  112,  p.  725. 
V.  Lvncli,  20  Mich.  274,  p.  6(14. 
V.  .Mahoney,  is  Cul.  Iso,  p.  203. 
V.   Mallon;  3  Lans.  224,  pp.  216, 
228. 

V.  Manalian,  32  Cal.  68,  p.  582. 
V.  Jlather,  4  Wend.  229,  pp.  223, 
229,  217,  251,  284. 

V.  McCalla,  8  Cal.  301.  pp.  151. 152. 
V.  .McCann,  3  I'ark.  Cr.  K.  272,  p. 

V.  McCartv,  48  Cal.  .557,  p.  2%. 
V.  .McCauley,  I  Cal.  379,  p.  217. 
V.  McCoUister,  1  Wheeler  c  C. 

p.  1K9. 

V.  McDonnell,  47  Cal.  134,  p.  ,582. 
V.  McGeery,  6  Park.  Cr.  li.  ().53, 
30. 

V.  McGuire,  43  How.  I'r.  67,  p.  16. 
V.  McGungill,  41  Cal.  429,  pp.  247, 

V.  McKay,  18  Jolms.  212,  pp.  68. 

V.  MeLane,  2  Johns.  381,  p,  19. 
V.  McMahon,  2  Park.  Cr.  11.  663. 
211,251. 

V.  ^leanv,  4  Johns.  294,  p.  402. 
V.  Melv'in,  2  \\  heeler  Cr.  C.  265, 
14. 

V.  Millsap.^i,  .35  Cal.  47,  p.  643. 
V.  Moice,  15  Cal.  329,  p.  .583. 
V.  Monroe,  .'0  Wend.  108,  p.  619. 
V.  Murphy,  45  Cal.  137,  pp.  218, 

V.   X.iughton,  7 "Abb.  Pr.  (X.  S.) 

pp.  051,  0.52,  0.53,  679,  093,  694,  723. 

V.  Page,  1  Idaho,  114,  p.  475. 

V.  Plununer,  9  Cal.  298,  p.  346. 

V.  Itansom,  7  Wend.  417,  pp.  333, 

364. 

V.  Rathbun,  21  Wend.  509,  pp.  251, 

V.  Reagle,  60  Barb.  527,  pp.  3.53, 

V.  Renfrew,  41  Cal.  37,  p.  247. 

V.  Reyes,  5  Cal.  347,  pp.  199,  202, 

V.  Rcvnokls,  16  Cal.  128,  pp.  211, 

225,  247,  29(!,  319. 

V.  Ristenblatt,  I  Abb.  Pr.  268,  p. 

V.  Roberts,  6  Cal.  214,  pp.  284,646, 

732. 

V.  Robinson,  2  Park.  Cr.  R.  235, 

68,  619. 

V.  Rodrigiiez,  10  Cal.  50,  pp.  131, 

5S3. 

V.   Rogers,    13  Abb.   Pr.    (X.  S.) 

pp.  121,287. 

V.  Romero,  18  Cal.  89,  pp.  .599,  616. 

V.  Russell,  46  Cal.  121,  p.  296. 

V.  Ryan,  2  Wheeler  Cr.  C.  47,  p. 

V.  Sanchez,  24  Cal.  17,  p.  203. 

V.  Sandford,  43  Cal.  29,  pp.  303, 

V.  Pcfltes,  4in.  351,  p.  345. 

V.  Scoiigins,  37  Cal.  676,  p.  296. 

V.'  Scroggins,  ,37  Cal.  679,  p.  2S2. 

V.  Shafer,  i    Utah,  260,  pp.    173, 

394. 

V.  Shattuck,  6  Abb.  X.  C.  33,  pp. 

741. 

V.  .Southwell,  40  Cal.  141,  pp.  597, 

629,  0.50,  701. 

V.  Stewart,  7  Cal.  140,  pp.  210.  26S, 

V.  Stoneclfer,  6  Cal.  405,  pp.  173, 
308. 


TABLE  OF  CASES  CITED. 


XXXVIB 


People  V.  Strut,  4  Park.  Cr.  R.  71,  pp. 

134,248,251,270. 
People  V.  Strong,  ]  Abb.  Pr.    (N.  S.)  244, 

p.  693. 
People  V.  Stuart,  4  Cal.  218,  pp.  78,  692. 
People  V.  Symonds,  22  C  1.  348.  pp.  219, 

725. 
People  V.  Tanner,  2  Cal.  257,  pp.  208,  210. 
Peoplev.  Thompson,  "4  Cal.  671,  p.  176. 
People  V.  Thurston,  5  Cal.  69,  pp.  620, 

644. 
People  V  Tinder,  19  Cal.  359,  pp.  691,  698. 
I'eople  V.  Turner,  39  Cal.  370,  p.  5.>8. 
People  V.  Tweed,  50  How.  Pr.  280,  pp.  93, 

111,  116,119,127,  2)1. 
Peoi>le  V.  Van  Alstyne,  MS.  cited  6  Cow. 

565,  p.  229. 
Peoiile  V.  Vance,  21  Cal.  400,  p.  78. 
People  V.  Verniilvea,  7  Cow.  121,  pp.  225, 

229,  259,  267,  287,  300. 
People  V.  Voll,  43  Cal.  166.  p.  303. 
People  V.   Walsh,  44    Cal.  440;    s.   c,    1 

Ureen  Cr.  L.  487,  p.  247. 
People  V.  Weil,  40  Cal.  268,  pp.  236,  309. 
People  V.  Welch,  49  Cal.  174,  pp.  81,  131, 

177,  229. 
People  V.  Williams,  6  Cal.  206,  p.  225. 
People  V.  Williams,  17  Cal.  142,  p.  216. 
People  V.  Williams,  24  Cal.   31,  pp.  416, 

493  535  537. 
People  V.  Williams,  43  Cal.  344,  p.  78. 
People  V.  WilUams,  24  Mich,  156,  p.  72. 
People  V.  Wilson,  3  Park.  Cr.  R.  199,  pp. 

208,301. 
People  V.  Wilsim.  8  Abli.  Pr.  137;  s.  c,  4 

Park.  Cr.  R.  619,  pp.  485,  527,  546,  558. 
People  V.  Wintermute,  1  Dak.  Ter.  6.!,  p. 

599. 
People  V.  Woods,  29  Cal.  135,  p.  241. 
People  V.  Woods,  29  Gal.  635,  p.  236. 
People  V.  Young,  31  Cal.  563,  p.  744. 
Pelham  v.  Page,  6  Ark.  535,  pp.  452,  458, 

460,  464. 
Perdue  v.  Bennett,  Minor  (Ala.),  lo8,  p. 

327. 
Peri  V.  People,  a5  111.  17,  p.  69. 
Perine  v.  Van  Note,  4  N.  J.  L.  146,  p.  520. 
Perkins  v.  Ermel,  2  Kan.  ;325,  p.  355. 
Perkins  v.  Knight,  2  N.  H.  474,  p.  406. 
Perkins  v.  State,  50  Ala.  1.54,  p.  731. 
I'erkins  v.  State,  60  Ala.  7,  p.  3-'8. 
Perkins  v.  State,  4  Ind.  222,  p.  745. 
Perry  v.  Bailey,  12  Kan.  539,  pp.  458,  540, 

556. 
Perry  v.  NewtOTi,  5  Ad  &  El.  514,  p.  474. 
Perry  v.  State,  9  Wis.  19,  pp.  41,  113. 
Perselly  v.  Bacon,  20  Mo.  330,  p.  744. 
Peter  V.  Greenough,  Smith  (N.H.),238, 

n.,  p.  340. 
Peter  V.  State,  3  How.  (Miss.)  433,  pp.  710, 

722,  733. 
Peterson  v.  Hangen,34  Iowa,  395. 
I'eterson  v.  State,  45  Wis.  .535,  p   101. 
Pettibone  v.   Phelps,  13  Conn.  455,  pp. 

407,  527,  .528. 
Pettis  V.  Warren,  Kirby,  426,  pp.  229,  234. 
Phelps  V.  Hall,  2  Tyler,  401,  pp.  189,  299. 
Phelps  y.  Keiley,  11  L.  J.  (C.  P.)  99,  p.  12. 
Phelps  V.  People,  6  Hun,  401,  p,  242. 
Phillips  V.  Com.,  19  Gratt.  485,  pp.  376, 

380,381.537. 
Phillips  V.  Fo\vler,  Comj'ns,  525;  s.   c. 

Barnes'  Notes,  411,  pp.  .508,  514. 
Phillips  y.  State,  29  Ga.  105,  pp.  81,  185. 
Phillips  V.  State,  0  Tex.  App.  44,  p.  287. 
Phillips,  Ex  parte,  10  (Exch.)  731;  s.  c,  1 

Jur.  (X.  S.)  143;  24  L.  J.  Exch.  79,  pp. 

339,  346. 
Phillipsburg  Bank  y.  Fulmer,  31  N.  J.  L. 

53,  p.  4.56. 
Fhipps  V.  Mansfield,  62  Ga.  209,  p.  A86. 


Plckensy.  Hobbs,  42  Ind.  270,  p.  339. 
Picken.s  y.  State,  .58  Ala.  364,  p.  329. 
Pierce  v.  Bush,  3  Bibb,  347,  p.  338. 
Pierce  y.  State,  67  Ind.  354,  p.  79. 
Pierce  v.  State,  13  N.  H.  536,  pp.  208,  235,. 

264,  274,  276. 
Pierce  v.  State,  12  Tex.  210,  pp.  628,  733. 
Pierce  y.  Tate, 27  Miss,  283,  pp.  326,  327. 
Pierce  y.  Woodward.  6  Pick.  2c6,  n.  546. 
Pierson  v.  State,  11  Ind.  ;U1,  p.  191. 
Pierson  y.  i'eople,  18  Hun, 239,  p.  121. 
Pierson  y.  People,  79  N.  Y.  424,  p.  310. 
Pike  Co.   V.  Griffin,  etc.  Plank  R'dCo., 

15  Ga.  39,  pp   17,  204. 
Pines  y.  State,  21  Ga.  227,  p.  264. 
Pinnev,  7?e,  27  Minn.  281,  p.  745. 
Pinson  y.  State,  23  Tex.  .579,  pp.  710,  716. 
Pipher  y.  Lodge,  16  Serg.  &  R.  214,  pp. 

181,  182,  196. 
Piper's  Case,  2  Bro.  (Penn.)  59,  p.  31. 
Pittsburgh,  etc.    R.    Co.    v.    Porter,  32 

Ohio  St.  328,  pp.  452,  458,  463,  525,  5,0, 

531. 
Pittstield  V.  Barnstead,  40  N.  H.  477,  pp. 

71,  323. 
Plea- ants  v.  Heard,  45  Ark.  403,  pp.  5  4, 

539,  543,  547. 
Plummer  v.  People,  74  111.   361,  pp.  198, 

217. 
Plunkett  y.  Appleton,  9  Jones  &  Sp.  1.59  ; 

s.  c,  51  How.  Pr.  469,  pp.  420,  421,  425, 

427. 
Pocket  y.  State,  5  Tex.  App.    552,  pp. 

76,  77. 
Poindexter  y.  Com.,  33  Gratt.  766,  p.  3. 
Pointer  y.  Thompson,  7  Humph.  532,  p. 

317. 
Polhemus  v.  Heiman,  50  Cal.  438,  p.  556. 
Pond  y.  State,  47  Miss.  :59,  p.  734. 
Poole  V.  Chicago,  etc.  R.  Co.,  12  Cent.  L.. 

J.  492;    s.  c,  6  Fed.  Rep.  814;  11  Re- 
porter, 828, p.  448. 
Pope  y.  State ,;;^6  Miss.   121,  pp.  406,  430, 

458,464,465,5,37. 
Porter  y.  Mount,  45  Barb.  422,  pp.  471, 

486. 
Porter  v.  People,  7  How.  Pr.  441,  p.  273. 
Porter  v.  State,  2  Ind,  435.  p.  3.53. 
Portis  y.  State,  27  Ark.  360,  p.  .523. 
Portis  y.  State,  23  Miss.  578,  pp.  624,  643. 
Portland,  etc.  Ferry  Co.  y.  Pratt, 2  .\llen 

(X.  B.)  17,  p.  187. 
Post  y.  Gazlay,  1  Ciu.  Sup.  Ct.  105,  pp. 

472, 479. 
Potsdamer  y.  State,  17  Fla.  895,  pp.  321, 

325,  329,  619,  733. 
Poucher  y.  Liyingston,  2  Wend.  296,  p. 

16. 
Poulterer's  Case,  9  Coke  Rep.  .55  b.,  p. 

6,54. 
Powell  V.  Haley,  28  Tex.  52,  p  304. 
Powell  V.  People,  5  Hun,  69,  127. 
Powell,  lie,  5  Mo.  220,  p.  36. 
Powers  y.  Presgroyes,  38  Miss.  227,  pp. 

247,  254,  274. 
Prall  y.  Peet,  3  La.  274,  pp.  75,  336. 
Pratt  Y.  Grappe,  12  La.  451,  pp.  59,  120. 
['ratt  y.  State,  56  Ind,  179,  p.  4.58. 
Pratt's  Case,  21  Jac.  I.,  p.  495. 
Pratt  y.  Coffman,  33  Mo.  71,  pp.  540,  ,542. 
I*i-esbury  y.  Com.,  9  Dana,  203.  pp.  338, 

343. 
Pressley  v.  State,  19  Ga.  192,  n.  101. 
Presswood  y.  State,  3  Heisk.  468,  p.  307. 
Preston  v.  State,  63  Ala.  127,  pp.  578,  620, 

729. 
Preston  y.  State,  8  Tex.  App.  30,  p.  317. 
Pre  wit  y.  People,  5  Neb.  377,  p.  .580. 
Price  y.  Com.,  21  Gratt.  846,  pp.  708,  714> 
Price  V.  Lambert,  3  N.  J.  L.,  401,  p.  430. 


XXXVIll 


TAHLK  OF  CASES  CITKl). 


I'rice  V.  McIIvain,  2  Treiidw.  Const.  (S. 

C.)  50:5,  p.  547. 
I'lke  V.   Wan  en,  1   Hon.  AM.  385,  pp. 

540  542.  .'54:5. 
Prince' V.  "state,  .3  Stew.  A   Port.  253,  p. 

111. 
J'riiiirle  v.  Iliise,  1  Cow.  432,  pp.  r2>,  211, 

2<!0. 
Prior  V.  Powers,  lKeble,811,  pi.  (87)  pp. 

,508,  514. 
I'ritcliard  v.  Hennessey,  1  Gray,  2ii4,  p. 

391. 
IProv.  lust.  V.  IJurnham,  128  Mass.  458,  p. 

194. 
i'russfl  V.  Knowles,  pp.  .542,  .545. 
I'ryne  v.  Titclunar.sh,  10  Moc.  &  W.  G05, 

)).  304. 
Pulaski  V.  Ward,  2  Kich.  L.  119,  pp.  355, 

.524,  .535. 
Puriaton  v.  Ilumphreys,  6  Me.  379,  pp. 

451,458,  .523. 
Purple  V.  Horton,  13  Wend.  11,  p.  193. 
Pybos  V.  State,  3  Humph.  49,  p.  iJU>. 

Q- 

"l^uesenberry  v.  State,  3  Stew.  &  Port. 

20S,  pp.  176, 226. 
Qiiifilev  V.  Com.,  84  Pa.  St.  18,  p.  336. 
<,>uinn  V.  Halbert,  .52  Vt.  353,  p.  338. 
<,Hiinii  V.  State,  14  liid.  589,  p.  360. 
-(JuinebaufT  Hank  v.  Leavans,  20  Conn. 

S7,  pp.  182,339,341. 
■<^)uinebauf;   Hank  v.   Tar'jox,  20  Conn. 

510,  pp.  112,  l(w. 

K. 

Kafe  V.  State,  20  Ga.  60,  pp.  113,  120,  157, 

222. 
Ilafrantball  v.  Com.,  14  Bush,  457,  pp. 

632,  740. 
Jla-land  v.  Wills,  6  I  eigh,  1,  pp.  3.53,  388. 
Itiiinev  V.  Pcoiile,  8  III.  71,  p.  735. 
Itainailfie  v.  iJvan,  9  BinK.333,  p.  346. 
llainos  V.  Bringier,  2  Mart.  (X.  S.)  192,  p. 

75. 
Handall  v.  Grover,  1  X.  J.  L.  151,  p.  540. 
Kandall  v.  Kayon,  4  Mart.  (X.  S.)  1.32,  p. 

525. 
Piank  V.  Shewev,4  Watts.  218,  p.  181. 
Kankin  v.  Goddard,  4  Allen  (X.  15.),  1.55, 

p.  93. 
Hash  V.  state,  61  Ala.  89,  pp.  102,  270,  283, 

335,  336. 
JJatclitf's  Case,  1  Wm.  Bl.  3;  s.  c,  Foster 

Cr.  L.  40;  18  How.  St.  Tr.  429,  pp.  140, 

149. 
IJalteree  v.  State.  .53  Ga.  .570,  p.  335. 
Uawls  V.  State, 8  Smed.  &  M.  599,  pp.  604, 

630. 
JJawson  V.  Curtiss,  19  111.  4.56,  pp.  473,  477, 

4S0. 
J{av  V.  .State,  15  Ga.  223,  pp.  211,  338,  346. 
Kay  V.  State,  2  Kan.  405,  p.  226. 
JJav  V.  State,  1  <i.   Greene,  3.6,   pp.   723, 

■  724,  725. 
P.av  V.  State,  4  Tex.   App.  4  0,  pp.277, 

"289,  291,  2»7,  323,  324. 
Jte.id  V.  Cambrldj^e.   124  Mass.  567,  pp. 

420,421,425,426. 
Head  v.  Com.,  22  Gratt.  92t,p.  541. 
Heading's  Case,  7  How.   St.   Tr.   264,   p. 

137. 
Heason  v.  Bridges,  1  Craneli  C.  C.  478, 

pp.  249,  260. 
Heaves  v.  Moody,  15  Uicli.  L.  312,  p.  544. 
Hector  V.  Hudson,  20  Tex.  2:54,   pp.   110, 

:K3. 
JJeddle  v.  Mate,  3  Heisk.  401,  p.  ;i47. 


Redmon  I  v.  Royal  Ins.  Co.,  7  Phila.  167. 

p.  4.58. 
Redus  V.  Wofford,  4  Smed.  &  M.  579,  pp. 

6,  325. 
Reed  V.  State,  15  Ohio,  217,  p.  78. 
Reed  V.  State,  1  Tex.  App.  1,  pp.  323,  .597, 

615. 
Reeves  v.  Sta«^e,  20  Ala.  33,  pp.  731,  7:53. 
Regicides,  Trial   of  the,  5   tiow.  St.  Tr. 

979;  8.  c.  Sir  J.    Kelyng,  9,   pp.    150, 

194. 
Res.  V.  Austin,  4  Cox  C  C.  :585,  p.  70G 
Reg.  V.  Ballivos,  1  P.  VV.212;  6  Dane  Abr. 

2:55,  p.  ;59!. 
Reg.  V.  I5enjamin,  4Up.  *an.  C.  P.   179, 

p.  147. 
Reg.  V.  Burke,  lO  Cox  C.  C.  519,  p.  117. 
Reg.  V.  Hutterlicld,  2  Moody  A  R..  p.  728. 
Reg.  V.  Chainaillard,  18  Low.  Can.  Jur. 

149,  1).  19. 
Reg.  V.  Conrahy,  1  Craw.  &  Dix  (Irish), 

.56,  p.  116. 
Reg.  V.  Cooke,  8  Car.  &  P.  587,  p.  704. 
Reg.  V.  Coulter,  13  Up.  Can.  (C.  P.).  299, 

p.  3011. 
Keg.  V.  Deline,  10  Mod.  198,  n.  81. 
Reg.  V.  Dospard,  2  Man.  &  Hy.  406,  p.  283. 
Reg.  V.  Dongall,  18  How.   Can.  Jur.  85, 

pp.  19,  144. 
Reg.  V.  Dowling,  3  Cox  C.  C.  .509,  pp.  96, 

254. 
Reg.  V.  Fay.  Irish  Ren.  6  C.  L.  436,  p.   82. 
Reg.  V.  Fellowes,  19  Up.  Can.  Q.  B.  48,  p. 

147. 
Reg.  V.  Fitzpat'ick,  Craw.  &  Dix  (Irish), 

513,  pp.  116,  2.57. 
Reg.  V.  Flint,  3  Cox  C.  C.  66,  p.  283. 
Reg.  V.  Frost,  9  Car.  &  P.  129,  pp.  144, 2S}. 
Reg.  V.  Geach,  9  Car.  &  P.  499,  pp.   137, 

144,  145. 
Reg.  V.  Gibson,  1  Car  &  31.  672,  p.  745. 
Reg.  V.  Giorgetti,  4  Fost.  &  Fin.  546,  p. 

19. 
Reg.  V.  Gray,  11  CI.  &  Fin.  427,  pp.   137, 

i:58,  140, '141,142. 
Reg.  y.  Grav,6  Ir.  C.  L.  259,  p.  267. 
Reg.  V.  Heane,  9  Cox  C.  C.  433,  pp.  613, 

620. 
Reg.  V.  Hodges,  8  Car.  &  P.  195,  p.  700. 
Reg.  V.  Holloway,  9  C  r.  &  P.  43,  p.  585. 
Reg.  V.  Hughes,  1  Car.  &    K.     519,    pp. 

685,  743,  747. 
Reg.  V.  Hughes,  1  C.  &  K.  2.^5,  p.  246. 
Reg.  V.  Hughes,  1  Craw.  &  Dix,  396,  pp. 

258,  283,  285. 

Reg.  v.  Humphreys,  Car.  &  M.  601,  p.  7«6. 
Reg.  V.  Key,  3  Car.  &  K.  :571;  s.  c,  15  Jur. 

10.55,  p.  283. 
Reg.  v.  Key,  Temple  &  Mew,  623,  p.  149. 
Reg  y.  Lacey,  3  Cox  C.   C.  511,  pp.  255, 

259,  2.>2. 

Reg.  v.  Manning,  1  Den.  C.  C.  467,  p.   19. 
Reg.  y.  Mc(iowen,  cited  in   Reg.   v.  Mc- 

Cartie,  11  Ir.  C.  H.  (N.  S.)  188,   p.  115. 
Reg.  V.  McMahon,  Irish  Rep.  9  C.  L.  SOi), 

p.  143. 
Reg.  y.  Mellor,  Dears.  &  Be  1  C.   C  468, 

pp.  :5:53,  :5:54,:i42,  346,  348. 
Reg.  V-.  Metcalf  -,  3  Cox  C.  C.  220,  pp.  3.53, 

3:54. 
Reg.  V.  Miller,  8  Low.  Can.  Jur.  280,  p.  19. 
Reg.  y.  Mitcliel,  3  Cox  V.V.  1,  p,  116. 
Reg.  V.  Xewton,  3  Car.  &  K.  85;    s.   c,  13 

(,).  H.  716;  3  Cox  C.  C.  489;  13  Jur.  606; 

18  L.  J.  (M.  C.)  201,  p.  451. 
Reg.  y.  Xicholson.  8  Dowl.  P.  C.422;s.  c, 

4  Jur.  .5.5S,  p.  190. 
Reg.  y.  OConnell,  7  Ir.  L.  261,  p.  3:56. 
Reg.  y.  Pattes(  n,  36  Up.  Can.  (Q.  t>.)  129, 

p.  147. 


TABLE  OF  CASES  CITED. 


XXXIX 


Reg.  V.  Phillips,  11  Cox  C.  C.  143,  p.  336. 
Keg.  V.  Rea,  6  Irish  C.  L.  (N.  S.)  428,  p. 

117. 
Reg.  V.  Russell,  1  Car.  &  M.  247,  pp.  667, 

694. 
Reg.  V.  Svillivan,  1  Per.  &  Dav.  96;  s.  c.,S 

Ad.  &  El.  831,  pp.  '283,  312,. i28. 
Reg.  V.  Swain,  2  LewinC.  C.  116;  s.  c,  2 

Mood.  &  Rob.  112,  p.  235. 
Reg.  V.  Stewart,  1  Cox  C.  C.  174,  pp.  192, 

254. 
Reg.  V.  Vonlioff,  10  Low.  Can.  Jur.  292, 

p.  19. 
Reg.  V.  Wardle,  Car.  &  M.  647,  p.  283. 
Reich  V.  State,  .53  Ga.  73,  pp.  608,  617. 
Reins  V.  People,  30  111.  256,  pp.  354,  360, 

431. 
Rennick  v.  Walthall,  2  A   K.  Marsh.  23, 

p.  339. 
Respublica  v.  Mesea,  1  Dall.  73,  p.  19. 
Respublica  v.  Richards,  1  Yeates,  480,  p. 

186. 
Respublica  v.  Shaffer.  1  Dall.  2.36,    pp. 

689,  698. 
Rex  V.Adams,  Jebb  C.  C.  132,  p.  138. 
Rex  V.  Barrett,  Jebb  C.  C.  103,  p.  302. 
Rixv  Buvlett,  1  Ld.  Rayni.   148;  s.  c,  2 

Salk.645,  pi.  9;  12  Mod.   Ill,  pp.  452, 

476. 
Rex  V.  Burri  'ge,  1  Stra.  593 ;  s.  c,  2  Ld. 

Rajnn.  1364,  p.  125. 
Rex  V.  Carlile,  cited  8  Car.  &  P.  582,  p. 

704. 
Rex  V.  Clark,  1  Sid.  272,  p.  32. 
Rex  V.  Cro;slield,  8  How.  St.  Tr.  733^  n. 

p.  685. 
Rex  V.  Davis,  1  Car.  &  P.  470,  pp.  729,  731. 
Rex  V.  Delaney,  Jebb  C.  C.  106,  p.  30^ 
Rex  V.  Derbishire,  1  Moo.  &  Rob.  307,  p. 

13. 
Rexv.  Despard,  2  Man.  &  Ry.  406;  s.   c, 

sub  7101)1.  Rex  V.  Sutton,    8   Barn.    & 

Cress.  417,  pp.  126,  311. 
Rex  V.  Dickinson,  Russ.  &  Ry.  C.  C.  401, 

p.  693. 
Rex  V.  Dolby,  2  Barn.  &  Cress.  104,  p.  91. 
K8X  V.  Dolby,  1  Dow.  &  Ry.  145,  p.  80. 
Rex  V.  Dunconibe,  12  Mod.  224,  p.  150. 
Res  V.  Edmunds,  4  Barn.  &  Aid.  471,  pp. 

40,  60,  82,  120,  129,  212,  229,  246,  248,  258, 

267,  .337. 
Rex  V.  Edwards,  Russ.  &  Ry.  223;  s.  c,  4 

Taunt.  309;  3  Camp.  207,  pp.  301,  302. 
Rex  V.  Kearnley,  1  Leach,  (4th  Ed.)  425, 

p.  729. 
Rex  V.  Gordon,  2  Doug.  569,  p.  96. 
Rex  V.  Hanlev,  1  Craw.  &DixCir.  (Irish) 

183,  n.,  p. '194. 
Rex  V.  Higgins,  Sir  T.  Raym.  484,  p.  570. 
Rex  V.  Hill,  1  Car.  &  P.  667,  p.  93. 
liex  V.  Hunt,4  Baru.  &  Aid.  430,  pp.  15, 

93   129  333  343. 
Rex  V.  Hunter,  3  Car.  &  P.  591,  ]i.  680. 
Rex  V.  Johnson,  2  Strange,  1000,  pp.  Ill, 

126. 
Rex  V.  Kinlock,  1  Wils.  157;  s.  c.,rost.Cr. 

L.  16,  p.  302. 
Rex  V.  Kinnear,  2  Bai<n.  &  Aid.  462,  pp. 

353,  357,  394. 
Rex  V.  Kirwan,  cited  Finlay's  Irish  Dig. 

347,  pp.  249,  2.58. 
Rex  V.  Lord  Fitzwater,  2  Lev.  140,  p.  508. 
Rex  V.  Lord  Preston,  1  Salk.  378,  pp.  680, 

699. 
Rex  V.  Lukens,  1  Dall.  5,  p.  719. 
Rex  V.  Marsh,  6  Ad.  &  El.  236 ;  s.  c,  1  Nev. 

&  P.  187,  pp.  t)18,  620,  644,  729,  731,  742. 
Rex  V.  Okey,  1  Levinz,  61;  s.  c,  Sid.  72; 

Sir  J.  Kelyng,  13;  1  Keble,  244,  pp. 

140, 149. 
Rex  V.  Parry,  7  Car.  &  P.  838,  p.  310. 


Rex  V.  Parry,  8  Car.  &  P.  836,  p.  144. 
Rex  V.  Percival,  1  Sid.  243,  p.  169. 
Rex  V.  Perkins,  Holt,403,  i).230. 
Rex  V.  Perry,  5  T.  R.  453,  pp.  13,  94. 
Rex  V.  Phelan,  1  Craw.  &  i)ix  C.   C.   189, 

p.  138. 
Rex  V.  I'ilkinton,  2  Shower,  262,  p.  108. 
Rex  V.  Pugh,  1  Doug.  179,  p.  34. 
Rex  V.  Roysted,  1  Keny.  2.55,  p.  728. 
Rex  V.  Kussel,  2  Shower,  310,  p.  20. 
Rex  V.  Scalbert,  2  Leach,  706,  p.  302. 
Rexv.  Shepherd,  1  Leach  C.  C.  119,  p.  111.. 
Rex  V.  Smith,  2  Shower,  288,  p.  80. 
Rexv.  St.  Michael,  2  W.  Bl.  718,  p.  325. 
Rex  v.  Stone,  6  T.  R.  527,  pp.  286,  371,  376. 
Rex  V.  Sutton,  8  Barn.  &  Cress.  4  7 ;  s  c, 

15  Eng.  L.  &  Eq.  252,  pp.  177,  338,   344, 

348,  528. 
Rex  V.  Tipping,  1  Car.  &  P.  668,  p.  93. 
Rex  V.  Tremaine,  7  Dowl.  &  Ry.  684,  pp. 

122,333,  334. 
Rex  V.  Vaws,  1  Mod.  24,  p.  728. 
Rex  V.  Waite,  4  Mod.  248,  p.  728. 
Rex  V.  Warrington,  1  Salk.  152,  pp.  80, 

81. 
Rex  V.  Whelan,  1  Craw.  &  Dix  C.  C.  1S9, 

p.  138. 
Rex  V.  Whitaker,  Cowp.  752,  p.  40. 
Rex  V.  AVillett,  6  Term  Rep.  294,  p.  692. 
Rex  V.  Woolf,  1  Chit.  Rep.  401,  pp.  353, 

357. 
Rex  V.  Worcester,  Skin.  101,  p.  248. 
Rex  V.  Worcester,  Sir  T.  Raym.  485,  p.  20. 
Reynolds  v.  Champlain  Trans.     Co.,    9' 

How.  Pr.  7,  pp.  407,548. 
Reynolds  v.  Rowley,  2  La.  An.  890,  p. 

'  155. 
Reynolds  v.  State,  1  Ga.  222,  pp.  148,  214,. 

223. 
Reynolds  v.  United   States,  98  U.  S.  145,. 

pp.  51,215,  227,228,248,252,270,279,  311, 

646,  647. 
Rice  v.  Bancroft,  11  Pick.  469,  p.  527. 
Rice  V.  State,  16  Ind.  298,  p.  342. 
Rice  V.  State,  1  Yerg.  432,  pp.  211, 223, 237,. 

243. 
Rich  V.  Campbell,  1  Woods,  509,  pp.  49, 

50. 
Rich  V.  Player,  2  Show.  261,  pp.  81,  248. 
Rich  V.  State,  1  Tex.  App.  206,  pp.  273, 325, 

327. 
Richards  v.  Com.,  11  Leigh,  091.  p.  19. 
Richardson  v.  Jones,  1  Kev.  405,  p.  458. 
Richey  v.  Missouri,  etc.  R.  Co.,  7  Mo. 

App.  .581,  p.  205. 
Richmond  v.  Roberts,  98  111.  472,  pp.  206,. 

283. 
Rickard  v.  State,  74  Ind.  275,  p.  429. 
Riddlesburg  Iron  &  Coal  Co.  v.  Rogers, 

65  Pa.  St.  416,  p.  472. 
Ridling  v.  State,  56  Ga.  601,  p.  647.      ~ 
Rigg  V.  Cook,  9  111.  336,  p.  393. 
Riggins  V.  Brown,  12  Ga.  272,  ]3p.  394,502. 
RiggS  V.  State,  26  Miss.  51,  p.  540. 
Riley  V.  Bussell,  1  Heisk.  294,  p.  198. 
Rilev  V.  State,  9Hunjph.  646,  p.  537. 
Riplev  V.  Coolidge,  Minor,   11,  pp.  270, 

:i22,  338. 
Ritchie  V.  Holbrook,  7  Serg.  &  R.  458,  pp. 

406,  429,  549. 
Robbins  v.  State,  49  Ala.  394.  p.  324. 
Robbins  v.  Windover,  2  Tyler,  11,  p.  540. 
Roberts  v.  Fallis,  1  Cow.  238,  p.  510. 
Roberts  v.  Hughes,  7  Mees.  &  W.  399,  pp. 

545,  548,  557. 
Roberts  v.  State,  5  Tex.  App.  141,  p.  92. 
Roberts  v.   Swearengen,  Hard.  121,    p. 

3  8. 
Robertson  V.  State,  43  Ala.  325,  pp.  ICl,. 

102. 


x:l 


TABLE  OF  CASES  CITED, 


Hobinson  v.  Uaiulall,  S-J  111.  :,\7>,  pp.  20J, 

3US.  :J09. 
J{nl)in.soi»  v.  State,  33  Ark.  ISO,  p.  300. 
i:obU'>  V.  State,  5  Tex.  App.  346,  pi).  99, 

17.'),  -270. 
Kolxson  V.  Archer, '.'  X.  J.  I..  103,  p.  333. 
Uockford  lus.  Co.  v.  Kelson,  75  111.  548, 

p.  79. 
JRoeiler  v.  StiuU,    MS.  St.  Louisi   Ct.  of 

Allp<■al^s,  p.  521. 
Rogers  v.  Lamb,  3  Blackf.  1.55,  p.  109. 
Jiogers  V.  Moultluop,  13  Wend.  274,  p. 

425. 
IJogcrs  V.  Rogers,  14  Wend.  131,  pp.  226, 

247. 
Rogers  V.  Smith,  1  A.d.  &  El,  772,  p.  66. 
Jiogers  V.  State,  33  Ind.  543,  p.  S8. 
Rogers  V.  The  Marshall,  1  Wall.  615,  p. 

500. 
RoUand  v.  Com.,  82  Pa.  St.  306,  pp.  72,  75, 

120,  121. 
Rollins  V.  Ames,  2  X.  II.  350,  pp.  171,  243, 

52S. 
Romainc  v.  StatP,  7  Ind.  63,  pp.  214,  339, 

343,  347. 
Roman  v.  State,  41  Wis.  312,  p.  45S. 
Rondeau  v.  Xew  Orleans  Imp.  Co.,  15 

La.  100,  pp.  88,  230. 
Rookwood's  Case,  18  How.  St.  Tr.  139, 

pp.  659,660,  712. 
Root  V.  Sherwood,  6  Johns.  68,  p.  393. 
Rose  V.  Davis,  4  Cow.  17,  p.  461. 
Rose  V.  St.  Charles,  49  Mo.  50.),  pp.  13, 185. 
Rose  V.  State,  Minor,  28,  p.  731. 
Roseborough  v.  State,  43  Tex.  570,  pp. 

304,  338,  341. 
Ross  V.  Kason,  2  Yeates,  126.  p.  i:i. 
Jloss  V.  Xeal,  7  T.  B.  yUni.  408,  p.  5. 
Ross  V.  State,  1  lilackf.  390,  p.  592. 
Rosserv.  McColly,  9  Ind.  587,  p.  394. 
Rothschild  V.  State,  7  Tex.  App.  519,  pp. 

211,  219,  228,  236,  238.  309,  6s6,  688. 
Rowand  v.  Com.,  82  Pa.  St.  405,  pp.  661, 

666,  667,  705. 
Jlowan  V.  State.  30  Wis.  129,  pp.  367,  381. 
Rowe  V.  State,  11  Humph.  491,  p.  4.i8. 
Royston  v.  Royston,  21  Ga.  161,  p.  233. 
Ituble  V.  McDonald,  7  Iowa,  90,  pp.  510, 

513,  518,  553. 
Ruckersville  Bank  v.  Hemphill,  7  Ga. 

396,  pp.  481,  485. 
JRuff  V.  Rader,  2  Mont.  211,  pp.  225,  228. 
Runnels  V.  State,  28  Ark.  121,  p.  580. 
Russell  V.  Hamilton,  3  111.  56,  p.  185. 
Russell  V.  People,  44  111.  .>0S,  pp.  360,  380. 
Russell  V.  (^ainn,  114  Mass.  103,  p.  304. 
Russell  V.  State,  53  Miss.  367,  pp.  78,  208, 

277,  458. 
Russell  V.  State,  33  Ala.  366,  pp.  610,  616, 

730. 
Russell  V.  State,  10  Tex.  288,  ]i.  329. 
Russell  V.  Union  Ins.  Co.,  1  Wash.  C.  C. 

440,  p.  5-.i7. 
Rust  V.  Shackleford,  47  Ga.  538,  p.  184. 
Rust,  E.c  parte,  43  Ga.  209,  p.  37. 
Rutherford  v.  Com.,  13  Bush,  608,  p.  268. 
Itvan  V.  Harrow,  27  Iowa,  494,  p.  4.58. 
Ryan  v.  Kelly,  9  Mo.  App.  591,  p.  540. 
Ityder  V.  People,  38  Mich.  269,  p.  246. 

S. 

Sacramento,  etc.  Mining  Co.  v.  Showers, 
6  Xev.  291,  pp.  452,  4.53,  4.54,  463. 

Sage  V.  Brown,  34  Ind.  464,  p.  390. 

Sam  V.  State,  31  Mi^s.  480,  j).  342. 

Sam  V.  Staff,  13  Suied.  &  M.  189,  pp.  205, 
217,  223,  225,  228,  236. 

:Sampson  v.  ^chaffer,  3  Cal.  107,  p.  308. 

Samschen  v.  State,  8  Tex.  Ai)p.  45,  p.  93. 

Samuels  v.  State,  3  Mo.  68,  p.  68. 


.Sanchez  v.  People,  4   Park.  Cr.  R.  535, 

p.  217. 
Sanchez  v.  People,  22  X.  Y.  147,  pp.  251, 

268. 
Sanders  v.  Slate,  55  Ala.  183,  np.  574,  009, 

620. 
Sanders  v.  State,  2  Iowa,  230,  pp.  388, 

389. 
Sanderson  v.  Bowen,  4  Tliomp.  &  C.  675, 

p.  471,  486,  487. 
Sanderson  v.  Nashua,  44  X.  H.492,p.  .''•20. 
Sandford  v.  State,  11  Ark.  328,  pp.  317, 

328. 
Sands  v.  Com.,  21  Gratt.  871,  p.  75. 
Sands  V.  Roblson,  12  Smed.  &  M.  70t,  p. 

pp.  740,  745. 
Sarah  v.  Slate,  28  Ga.  576,  p.  9. 

Sargent  v. ,  5  Cow.  106,  p.5tl. 

Sargent  v.  Roberts,  1  Pick.  337,  pp.  420, 

421,423,424,425. 
Sargent  v.   state,  11   Ohio,  472,  pp.  364, 

387,390,391,  3'.i2. 
Sartor  V.  McJunkin,  8  Rich.  L.  451,  p. 

388. 
Saunders  v.  Coflin,  16  Ala.  421,  p.  736. 
Saunders  v.  Fuller,  4  Humph.  516,  p.  543. 
Sawdon's  Case,  2  Lowin  C.  C.  117,  p.  144, 

198. 
Sawyer  v.  Hannibal,  etc.  R.  Co.,  37  Mo. 

240,  pp.  510,  514,  540,  512,  5(3. 
Sawyer  v   State,  17  Ind.  435,  p.  730. 
Sayer  v.  Ducroix,  16  L.  J.  (Q.  B.)  120.  p. 

12. 
Sayres  v.  Scudder,  2  X.J.  L.  53,  p.  7o. 
Schanler  v.  Porter,  7  Iowa,  482,  p.  510, 

518, 553. 
Schappner  v.    Second   Ave.  R.  Co.,  55 

Barb.  -.97,  pp.  471,  4S4,  486. 
Schenck  v.  Stevenson,  2  X.  J.  L.  387,  p. 

540. 
Schoeflier  v.  State,  3  Wis.  823,  pp.  211, 

251,  308. 
School  Dist.  Xo.  1  v.  Bragdon,  23  X.  II. 

507,  p.  423. 
Schmidt  v.  Chicago,  etc.  R.  Co.,  83  111. 

405,  p.  1.55. 
Schmidt   v.  Xew  Y^ork  Ins.  Co.,  1  Gray, 

529,  p.  3. 
Schmidt  v.  Rose,  6  Mo.  App.  587,  pp.  342, 

346. 
Schumin  V.  State,  20  Ohio  St.  233,  pp. 

289,  291,  295. 
Schumacker  v.  State,  5  Wis.  324,  pp.  177, 

292,  296,  345. 
Schuvlkill  Xav.  Co.  v.  Farr,  4  Watts  A  S. 

36-2,  p.  150. 
Schuylkill,  etc.  R.  Co.  v.  McCreary,  58 

I'a.  St.  304,  p.  476. 
Schwenk  v.  (Jmsted,  6  Serg.&R.  351,  p. 

150. 
Scott  V.  Moore,  41  Vt.205,  pp.  304,  326. 
Scott  V.  I'eople,  63  111.  508,  p.  724. 
Scott  V.  State,  63  Ala.  59,  r^p.  579, 620. 
Scott  V.  State,  7  Lea,  232,    pp.    541,  544, 

5.52. 
Scranton  V.  Stewart,  .52  Ind.  68,  p.  216. 
Scranton,  Jie,  74  111.  161,  pp.  34,  37. 
Scripps  V.  Reilly,  38  Mich.  10,  p.  297. 
Seacordv.  Burling,  1  How.  Pr.   175,   p. 

336. 
Seal  v.  State,  13  Smed.  &  M.  286,  p.  304. 
Sealy  v.  State,  1  Ga.  213,  p.  148, 
Seavy  v.  Dearborn,  19  X.  H.  351,  p.  183. 
Sehorn  V.  Williams,  6  Jones  L.  575,  pp. 

189,251. 
Seibert  v.  Price,  5  Watts  &  S.  438,  p.  471. 
Selleok  v.  Sugar   Hollow   Tp.    Co.,    13 

Conn.  453,  i)p.  303,  .528. 
.Sellers  v.  People,  4  111.  412,  p.  342. 
Sellers  v.  State,  .52  Ala.  368,  p.  291. 


TABLE  OF  CASES  CITED. 


xli 


Seven  Bishops,  Trial  of,  12  How.  St.  Tr. 

429, p.  460. 
Sexton  V.  Lelievrre,  4  Cold.  11,  pp.  406, 

466,  458,  52.5. 
Sejmiour  v.  Deyo,  5  Cow.  289,  pp.   340, 

343. 
Shackleford  v.  State,  2  Tex.  App.  385,  p. 

115. 
Shater  v.  State,  7  Tex.  App-  239,  p.  209. 
Shaffer  v.  State,  1  How.  (Miss.)  238,  p.  3. 
Shaftesbury  v.  Arrowsmith,  4  Ves.  66,  p. 

676. 
Shainv.  Markham,4  J.  J.  Marsh.  580,  p. 

314. 
Shane  V.Clarke, 3  Har.  &  McH.  101,  p. 

338. 
Shapley  v.  White,  6  N.  H.  172,  p.  423. 
Sharp  V.  State,  6  Tex.  App.  650,  pp.  98, 

307. 
Sharp  V.  Harrison,  10  Heik.  573,  p.  328. 
Sharp  V.  Hendrickson,  2  N.  J.  L.  686,  p. 

70. 
Shattuckv.  State,  11  Ind.  473,  pp.  655, 

686.  740. 
Shaw  V.  Fisk,  21  Wis.  368,  p.  .549. 
Shaw  V.  McCombs,  2  Bay  (S.  C),  232,  p. 

393. 
Shaw  V.  Newman,  14  Fla.  128,  p.  336. 
Shaw  V.  State,  18  Ala.  .547,  pp.  729,  730. 
Shaw  V.  State,  27  Tex.  750,  p.  342. 
Sliea  V.  Lawrence,  1  Allen,  167,  pp.  340, 

443. 
Sheaff  V.  Gray,  2  Yeates,  273,  pp.  406,  439, 

480,  494. 
Sheldon  v.  Perkins,  37  Vt.  550,  pp.  541, 

542. 
Shepherd  v.  Baylor,  5  X.  J.  L.  827,  p.  356. 
Shepherd  v.  State,  (54  Ind,  43,  p.  620. 
Shepherd  v.  Thompson,  4  N.  H.  213,  pp. 

480,  481. 
Sheppard  v.  Cook,  2  Hay.  (N.  CI  238,  p. 

195. 
Sheppard  v.  Lark,  2  Bailev,  576,  p.  514. 
Sheridan's  Case,  31  How.  St.  Tr.  811,  pp. 

570,  607. 
Sherley's  Case,  2  Dyer,  144.   a.  pi.  (59), 

p.  18. 
Shields  v.  Guffey,  pp.  477,  479,  480,  487, 

497,  499. 
Shields  v.  Niagara  Sav.  Bank,  3  Hun, 

477;  5  Th.  &  C.  (N.  Y.)  .585,  p.  90. 
Shields  v.  State,  8  Tex.  App.  421,  p.  226. 
Shinn  v.  Cora.,  .32  Gratt.  899.  p.  607. 
Shipman  v.  Birniinffham,  5  Up.  Can.  Q. 

B.  (O.  S.)  442,  p.  12. 
Sliobe  V.  Bell,  1  Rand.  39,  pp.  340,  513. 
Shoeffler  v.  State,  3  Wis.  823,  pp.  216,  222. 
Shoemaker  v.  State,  12  Ohio,  43,  pp.  321, 

325. 
.Sholley  V.  Diller,  2  Rawle,  177,  pp.  471, 

472,  478. 
Shomo  V.  Zeigler,  10  Pliila.  Oil,  pp.  471, 

476,  499. 
Short  V.  West,  30  Ind.  .367,  p.  3.57. 
Shropshire  v.  State,  12  Ark.  190,  pp.  705, 

726,  736. 
Shuster  v.  Com. ,.38  Pa.  206,  p.  142. 
Sidoli's  Case,  1  Lewin  C.  C.  244,  p.  19. 
Silsby  V.   Foote,  14    How.  218;    s.   c,   1 

Blatch.  444,  p.  301. 
Silvis  V.  Ely,  3  Watts  &  S.  421,  pp.   186, 

299. 
Simms  v.  Templeman,  5  Cranch  C.  C. 

163, p.  4S1. 
Simms  v.  State.  8  Tex.  App.  230,  pp.  221, 

347. 
Simpson  V.  Kent,  9  Phila.  30,  pp.  433,  438, 

407. 
Simpson  v.  Pitman,  13  Ohio,  .3(55,  pp.  339, 

U-2. 
Sinclair  v.  Ronsh,  14  Ind.  4.50,  p.  .540. 


Skinner  v.  State,  53  Miss.  399,  pp.  217^ 

276. 
Skipper  v.  Bodkin,  2  Sw.  &  Tr.  1,  p.  15. 
Slaughter  v.  State,  24  Tex.  410,  p.  429. 
Sloan  v.  Harrison,  1  N.  J.  L.  123,  p.  40(). 
Smith  V.  Atlantic,  etc.  R.  Co.,  25  Ohio 

St.  91,  p.  6. 
Smith  V.  Brown,  8  Kan.  608,  pp.  289.  295. 
Smith  V.  Cheethara,  3  Caines,  .57,  pp.  510,. 

514,  .541. 
Smith  V.  Clayton.  29  N.  J.  L.  358,  pp.  278, 

279,  299. 
Smith  V.  (!om.,  6  Gratt.  696,  pp.  219,  227. 
Smith  V.  Com.,  7  Gratt.  593,  pp.  219,  22T. 
Smith  V.  Com.,  3  Va.  Cas.  6,  p.  222. 
Smith  V.  Culbertson,  9  Rich.  L.   106,  p. 

540. 
Smith  V.  Eames,  4  111.  76,  pp.  215,  223,  542,, 

.547. 
Smith  V.  Earle,  118  Mass.  .551,  p.  3.39 
Smith  V.  Floyd,  18  Barb.  522,  pp.  211,  250, 

251,  266. 
Sraitli  V.  Graves,  1  Brev.  16,  p.  419. 
Smith  V.  Harrow,  3  Bibb,  446,  p.  388. 
Smith  V.  Holcombe,  99  Mass.  5,53,  p.  488. 
Smith  V.  Lovejoy,  62  Ga.  372,  p.  443. 
Smith  V.  McMillen,  19  Ind.  391,  p.  489. 
Smith  V.  Powers,  15  N.  H.  4.56,  p.  .547. 
Smith  V.  School  Dist.  40  Mich.   143,  pp. 

3.36,  344. 
Smith  V.  Smith,  50  N.  H.  212,  pp.  542,  .547. 
Smith  V.  State,  47  Ala.  540,  p.  329. 
Smith  V.  State.  53  Ala.  486,  pp.  328,  329. 
Smith  V.  State,  55  Ala.  1,  pp.  87, 176,  209, 

210,  274,  297,299,301. 
Smith  V.  State,  10  Ark.  536,  p.  328. 
Smith  V.  State,  19  Conn.  493,  p.  568. 
Smith  V.  State,  63  Ga.  169,  p.  373. 
Smith  V.  State,  4  G.  Greene,  189,  p.  292. 
Smith  V.  State,  .55  Miss.  410,  pp.  299,301. 
Smith  V.  State,  57  Miss.  822,  pp.  1.53,  1.54. 
Smith  V.  State,  4  Neb.  277,  pp.  131,  339. 
Smith  V.  State,  5  Neb.  181,  pp.  227,  243. 
Smith  V.  State,  1  Tex.  App.  408,  p.  328. 
Smith  V.  State,  4  Tex.  App.  626,  p.  329. 
Smith  V.  Thompson,  1  Cow.  221,  pp.  353, 

355. 
Smith  V.  Wagenseller,  21  Pa.  St.  491,  p. 

195. 
Smith  V.  Ward,  2  Root,  .302,  p.  .342. 
Smith  V.  Williamson,  11  N.  J.  L.  313,  p. 

373. 
Smith  V.  Willingham,  44  Ga.  200,  pp.  4<l(, 

530  532. 
Smuil  V.  Jones,  6  Watts  &  S.  122,  pp.  182, 

189. 
Snell  V.  Timbrell,  1  Stra.  643,  p.  438. 
Snodgrass  v.  Hunt,  15  Ind.  274,  p,  155. 
Snook  V.  Southwood,  Ryau  &  Moo.  429, 

p.  93. 
Snowden  v.  State,  7  Baxt.  482,  p.  301. 
Sodousky  v.  McGee,  4  J.  J.  Marsh.  267,  p. 

1.55. 
Solander  v.  People,  2  Colo.  48,  pp,  135, 

229,  2.50,  268,  323. 
Soria  v.  State,  2  Tex.  App.  297,  p.  366. 
Sparks  v.  Com.,  9  Pa.  St.  354,  p.  714. 
Sparks  v.  Plankinhorne,  4  Yeates,  3?4, 

p.  70. 
Sparks  v.  State,  59  Ala.  82,  pp.  295,  297. 
Sparrenberger  v.  State  53  Ala.  481,  pp. 

618,  693,  693,  700,  741. 
Sparrow  v.  Turner,  2  Wils.  366,  p.  94. 
Spear  v.  Spencer,  1  G.  Greene,  .534,  pp. 

195,  260. 
Speed  V.  State,  52  Miss.  176,  pp.  705,  734. 
Speiden  v.  State,  3  Tex.  App.  156,  p.  289. 
Speigener  v.  State,  62  Ala.  383,  p.  571. 
Spence  v.  Spence,  pp.  472,  478,  486. 
Spencely  v.  De  Wilmott,  3  Smith  (K.  B.) 

322, p.  439. 


i"^) 


xlii 


TABLE  OF  CASES  CITED. 


Spencer  V.  De  Fiance,  3  G.  Greene,  210, 

pp.  ■».•■'>,  3-24. 
Spencer  v.  Sampson,  1  Caines.  V.)><,  p.  17. 
Sptnccr  V.  Trartoril,  4-2  Mil.  1,  |i    li"!. 
Spoford's  Case,  ('lii>  ton,  IX.  p.  301. 
Spong  V.  Lcslicr,  1  VcatC!i,3'.'i;,  ji.  ;50l. 
Spooner,  Kx parte,  3  N.  V.  City  llallUcc. 

im,  p.  653. 
Spoor  V.  Si)ooner,  V2Met.  2S1,  p.  .54(5. 
Spratt  V.  State,  8  Mo.  •HI,  pp.  715,745. 
Sprinficr  v.  State,  34  Ga.  37!»,  pp.  452,  453, 

455,  4.56. 
Springer  v.  State.  lOJnd.  180.  p.  735. 
Sproxice  V.  Com.  2  Va.  Gas.  375,  pjj.  222, 

223,  257,  308. 
Stafford  v.  State,  .55  Ga.  .591,  p.  542. 
Stajiner  v.  State,  11  Tex.  App.  440,  pp.  255, 

2<i5,  275. 
Stalev  V.  Barhifo,  2  Caines,  221,  p.  372. 
Stalls  V.  Stale,  28  Ala.  25,  p.  2'.i7. 
Stanipofski  v.    Steffens,  7'J  111.  303,   p. 

527. 
Stancell  v.  Kenan,  33  Ga.  .56,  p.  .354. 
Stanley  y.  State,  16  Tex.  5.57,  p.  603. 
Stanley  v.  Sutherland,  .54  Ind.  33!l,  p.  540. 
Stanton  v.  State,  13  Ark.  317,  pp.  538,  .540, 

547. 
Stapleton's  Case,  8  IIo>v.   St.  Tr.  505,  p. 

144. 
State  V.  Accola,  11  Iowa,  246,  p.  4*5,  .5.54. 
State  V.  Adair,  m  X.  C.  2!t8,  pp.  2i»7,  301. 
State  V.  Adams,  20  Iowa,  486,  p.  571. 
State  V.  Adams,  2  Lea,  647,  p.  674. 
State  V.  Addison,  2  So.  Car.  356,  pp.  687, 

698. 
State  y.  Alderson,  10  Yerg.  .523,  p.  70. 
State  r.  Alexander,  66  Mo.  14s,  p.  540. 
State  V.  Allen,  1  Ala.  442,  pp.  11(1,  624,  626. 
State  V.  Allen,  4(5  Conn.  .531,  pp.  237,  307. 
State  V.  Allen,  47  Conn.  121,  p.  90. 
State  y.  .Vllen,  83  X.  C.  680,  p.  682. 
State  V.  Anderson,  2  Bailey,  565,  pp.  357, 

387. 
State  V-  Anderson,  4  Nev.  265,  pp.  283, 

295,  303,  319,  413, 
State  V.  Ankiini,  Tappan,  80,  p.  252. 
State  V.  Antonio,  4  Hawks,  200,  p.  19. 
State  V.  Ansaleme,  15  Iowa,  44,  op.  622, 

624. 
State  V.  Antheny,  7  Ired.  L.  234,  p.  182. 
State  V.  Arata,  32  La.  An.  93,  p.  124. 
State  V.  Arnold,  12  Iowa,  479,  pp.  123,  206, 

263. 
State  y.  Arrington,  3  Mnrph.  571,  p.  391. 
State  V.  Arrowsmitli,    MS.    cited    State 

V.  Rickey,  9  X.  J.  L.  293,  p.  631. 
State  V.  Arthur,  2  Dev.  217,  pp.   147,  148, 

299,  300. 
State  V.  Arthur,  39  Iowa,  631,  p  80. 
State  y.  Ayer,  23  X.   H.  301,  pj).  22(i,  346, 

;}47,418,  536,  .547. 
State  V.  Babcock,  1  Conn.  401,  pp.  338. 

354,  359. 
State  V.  Railey,  21  Me.  62.  p.  720. 
State  V.  Baker,  20  Mq.  338,  p.  742. 
State  V.  ]5aker,  63  X.  C.  276,  p.  523. 
State  y.  Baldwin,  80  X.   C.  390,  pp.   182, 

619. 
State  y.  Baldwin,  2  Hill  (S.  C).  379,  p. 

113. 
State  V.  Baldwin,  1  Const.  Rep.  289,  pp. 

171,2.58,259. 
State  V.  Baldy,  17  Iowa,  39,  p.  457. 
State  V.  Baltimore,  etc.  R.  Co.,  15  W.  Va. 

362,  p.  741. 
State  V.  Bancroft,  22  Kan.  170,  p.  347. 
State  y.  Barnes,  7  Jones  L.  20,  pp.680, 

726. 
State  y.  Barnes,  5  Lea,  398,  p.  674. 
State  y.  Barnes,  20  Mo.  413,  p.  582. 
State  y.  Barnett,3  Kan.  250,  p.  664. 


State  V.  Barrontine,  2  Xott  4  McC.  553, 

p.  147. 
State  y.  Barton,  S  Mo.   App.  15;  s.  c,  71 

Mo.  228,  p.  228. 
State  y.  Burton,  19  Mo.  227,  !>.  354. 
State  y.  Bea.sley,  32  La.  An.  1162,  p.  323. 
State  y.  Beatty,  30  La.  An.  1266,  p.  .547. 
State  y.  Beebe,  17  Minn.  241,  pp.  734,  745, 

746. 
State  y.  Belcher,  13  So.  Car.  459.  pp.  300, 

.524. 
State  y.  Bell.  15  La.  An.  114,  p.  2iy.i. 
Stale  V.  15ell,  To  Mo.  (>.53,  pi  .  363,  370. 
State  V.  Beneeke,  9  Iowa,  203,  p.  10. 
State  y.  15cnnett,  14  La.  An.  651,  pp.  98, 

99,  2(M;,  2<i3. 
State  V.    Benton,  2  Dev.  &  B.  19(i,  pp.  87, 

148,  216,   2.50,  263,  2(>8,  271.  275,  276,  299, 

;503. 
State  V.  Bill,  15  La.  An.  114,  pp.  20(;,  233. 
State  y.  Blackburn,  80  X.  C.  474,  pp.  619, 

706. 
State  y.  Bleckley,  18  Mo.  428,  pp.  .595,  610. 
Stat<!  y.  Boatwright,  10  Rich.  L.  407.  p. 

291. 
State  V.  Bohan,  19  Kan.  28,  p.  124. 
State  y.  Bolt,  7  BlackL  19,  p.  615. 
State  V.  Bone,  7  Jones  L.  121,  pp.  148,216. 
State  V.  Boon,  80  X.  C.  416,  pp.  323,  324, 

340. 
State  V.  Borrowsky,  11  Xev.  119,  p.  9. 
State  y.  Bowden,  71  Me.  81),  p.  .304. 
State  y.  Bowers,  17  Iowa,  46,  p.  293. 
State  y.  Bo  vman,45  Iowa,  418,  j).  370. 
State  V.  Boyd,  2  Hill,  (S.  C.)  288,  pp.  693, 

695. 
State  V.  Bradford,  .57  X.  H.  188,  p.  <>42. 
State  y.  Bradley,  6  La.  An.  564,  pij.  481, 

539. 
State  y.  Brady.  14  Vt.  353,  p.  731. 
State  V.  Branch,  68  X.  C.  186,  pp.  &54,  705, 

706. 
State  y.  Brandon,  28  Ark.  410,  p.  725. 
State  V.  Brandt,  41  Iowa,  .593,  pp.  622,  623. 
State  V.  Brannon,  45  Mo.  329,  pp.  354,  363. 
State  V.  Braustetter,  65  Mo.  149,  pp.  509, 

510,  ,540. 
State  V.  Brazil,  2  Ga.  Dec.  107.  p.  419. 
State  V.  Breaux,  32  La.  An.  222,  pp.  275, 

300. 
State  V.  Brette,  6  La.  An.  652,  pp.  224.  385, 

530,  540. 
State  y.  Brooks,  9  Ala.  9,  pp.  116,  624,  626. 
State  V.  Brooks,  30  X.  J.  L.  3.56,  p.  100. 
State  y.  Broughton,  7  Ired.  L.96,  pp.  739, 

740,741,743,744,746. 
State  y.  Brown,  10  Ark.  78.  pp.  617,  718. 
State  y.  Brown,  15  Kan.  400,  pp.  232,  309. 
State  y.  Brown,  22  Kan.  222,  pp.  428,  431. 
State  y.  Biown,  4  La.  An.  .5a5,  p.  222. 
State  y.  Brown,  12  Minn.  538,  pp.  75,  289, 

324. 
State  y.  Brown,  71  Mo.  454,  p.  227. 
State  y.  Brown,  3  Strob.  L.  508,  p.  288. 
State  V.  Brown,  31  Vt.  6(J2,  pp.  709,  731. 
Stale  V.  Bruington,  22  La.  An.  9,  p.  322. 
State  y.  Bryan,  40  Iowa,  379,  pp.  231,  284. 
State  y.  Biyant,  10  Ycrg.  527,  p.  608. 
State  y.  Buekner,  25  Mo.  167,  pp.  90,  97, 

98,  142. 
State  y.  J5ullard,  16  X.  H.  1.39,  p.  457. 
State  V.  Bullock,  63  N.  C.  570,  pp.  76,  270. 
State  V.  Bunger,   14  La.  An.  461,  pp.  98, 

20i),  217,  228.  309,  339,  664. 
State  y.  Burgess,  24  Mo.  381,  pp.  682,  715, 

716,  725. 
State  y.  Burlinghain,  15  Me.  104,  pp.  619, 

651,  725. 
State  y.  Burns,  33  Mo.  483,  pp.  385,  386. 
State  V.  Cadwell,  1  Jones  L.  289,  p.  139. 


TABLE  OF  CASES  CITED. 


xllii 


State  V.  Cain,  1  Hawk-i,  :r>2,  pp.  mo,  GSl, 

693,  690,  :->(;. 
State  V.  Caldwell,  3  La.  An.  435,  p.  540. 
State  V.  Callioiin,  1  Dev.  &  B.  374,  pp.  710, 

714. 
State  V.  Calvert,  32  I.a.  An.  224,  p.  32(5. 
State  V.  Cameron,  2  Cliaiid.  172,  pp.  110, 

295. 
State  V.  Cantrell,  21  Ark.  127,  p.  fi3!l. 
State  V.  Cardoza,  11  So.  Car.  195,  i)p.  148, 

286. 
State  V.  Carney,  20  Iowa.  82,  pp.  622,  623. 
State  V.  Carson,  50  Ala.  134,  p.  228. 
State  V.  Carstapheu,  2  Hay  w.  238,  pp.  370, 

401,  .548. 
State  V.  Carver,  49  Me.  588,  p.  619. 
State  V.  Caultieid,  23  La.  An.  148,  pp.  301, 

429,  452,  458,  533. 
State  V.  Cazeau,  8  La.  An.  109,  p.  US. 
State  V.  Cliampeau,  52  Vt.  313,  p.  622. 
State  V.  Chandler,  2  Hawks,  439,  p.  709. 
State  V.  Chapman,  6  Nev.  320,  p.  247. 
State  V.  Christian,  30  La.  An.  367,  pp.276, 

327. 
State  V.  Clarissa,  11  Ala.  57,  p.  638. 
State  V.  Clark,  32  La.  An.  5.59,  p.  208. 
State  V.  Clark,  18  Mo.  432,  p.  736. 
State  V.  Clark,  42  Vt.  629.  pp.  214,  227. 
State  V.  Clarkson,  3  Ala.  378,  pp.  114,  116, 

624,  626. 
State  V.  Clayton,  11  Ricli.  L.  581,  p.  627. 
State  V.  Clinton,  67  Mo.  380,  p.  474. 
state  V.  Clough,  49  Me.  573,  pp.  631,  647. 
state  V.  Cockman,  2  Winst.  (N.  C.)  95, 

pp.  216,  308. 
State  V.  Cohn,  9  Nev.  179,  p.  32. 
State  V.  Cole,  9  Humph.  626,  p.  69. 
State  V.  Cole,   17  Wis.  674,  pp.  603,  613, 

632. 
State  V.  Coleman,  27  La.  An.  691,  pp.  216, 

219. 
State  V.  Coleman,  8  So.  Car.  237,  pp.  79, 

255,  305,  310,  332. 
State  V.  Collins,  3  Dev.  117,  pp.  709,  710, 

714. 
State  V.  Collins,  70  N.  C.  241,  p.  216. 
State  V.  Collins,  6  Baxter,  151,  p.  709. 
State  V.  Comstock,  27  Vt.  551,  p.  ,568. 
State  V.  Conley,  39  Me.  78,  pp.  1,52,  729. 
State  V.  Connell,  49  Mo.  282,  p.  610. 
State  V.  Conway,  23  Minn.  291,  pp.  370, 

619. 
State  V.  Cook,  20  La.  An.  145,  p.  101. 
State  V.  Cook,  Kiley,  234,  p.  731. 
State  V.  Cooper,  83  N.  C.  671,  p.  174. 
State  V.  Core,  70  Mo.  491,  p.  228. 
State  V.  Corson,  12  Mo.  454,  p.  705. 
State  V.  Coupenhaver,  39  Mo.  430,  p.  540. 
State  V.  Courtney,  28  La.  An.  789,  pp.  174, 

323. 
State  V.  Cowan,  1  Head,  280,  pp.  652,  698, 

703. 
State  V.  Cox,  8  Ark.  436,  pp.  6,  9. 
State  V.  Cox,  6  Ired.  L.  440,  pp.  707,  710, 

712,  714,  735. 
State  V.  Cox,  52  Vt.  471,  pp.  635,  636. 
State  V.  Crank,  2  Bailey,  (S.  C.)66,  p.  288. 
State  V.  Ci-aton,  6  Ired."  L.  164,  p.  147. 
State  V.  Creasman,  10  Ired.  L.  3-5,  pp. 

254,310. 
State  V.  (freight,  1  Brev.  169,  pp.  701,  733. 
State  V.  Creighton.l  Nott&  McC.256,  pp. 

703,  710. 
State  V.  Crosby,  4  La.  An.  434,  p.  385. 
State  V.  Crosby,   Harper   Const.    Rep. 

(S.  C.)  90,  pp.  67,  71. 
State  V.  Cueuel,  31  N.  J.  L.  252,  pp.  308, 

369,  370,  371,  381,  ,396,397,406,407,408, 

415,  442,  .523,  .525,  538.  .548. 
State  V.  Cummings,  5  La.  An.  330,  pp. 

281,291,301. 


State  V.  Curtis,  5  Humph.  601,  p.  301. 
State  V.  Dale,  8  Oreg.  22  »,  p.  91. 
State  V.  Daniels,  44  X.  H.  383,  p.  528. 
^tate  V.  Darnal,  1  Humph.  290,  p.  OiiO. 
State  V.  Da  Rocha,  20  La.  An.  356,  p.  113. 
State  V.  Darr,  63  N.  C.  516,  p.  718. 
State  V.  Davidson,  12  Vt.  300,  pp.  708,  713. 
State  V.  Davis,  41  Iowa.  311,  pp.  2s4,  307, 

30-!,  742. 
State  V.  Davis,  14  La.  An.  678.  p.  642. 
State  V.  Davis,  22  Minn.  423,  pp.  585,  597. 
State  v.  Davis,  29  Mo.  397,  p.  2i8. 
State  V.  Davis,  14  Nev.  439,  pp.  203,   206, 

223,  235,  263,  284. 
State  V.  Davis,  2  Ired.  L.  143,  pp.  619,  646. 
State  v.  Davis,  80  N.  C.  412,  pp.  267.  383, 

297,  301,  340. 
State  V.  Davis,  12  R.  I.  492,  pp.  003,  616, 

617. 
State  V.  Davis,  ,52  Vt.  376,  p.  568. 
State  v.  Degonia,  69  Mo.  485,  pp.  13,  287, 

407,  408,  451. 
State  V.  Delue,  1  Chand.  166,  p.  730. 
State  V.  Denton,  14  Ark.  313,  p.  721. 
State  V.  Desmond,  5  La.  An.  399,  p.  385. 
State  V.  Desniouchet,  32  La.  An.  1241,  pp. 

89,  216. 
State  V.  Dickson,  6  Kan.  20:i,  pp.  275,  724. 
State  V.  Doan,  2  Root,  451,  p.  176. 
State  V.  Dolling,  .37  Wis.  396,  pp.  367,  381, 

383,  548. 
State  V.  Doon,  R.  M.  Charlt.   1,  pp.  .540, 

543. 
State  V.  Dotv,  32  N.  J.  L.  403,  p.  438. 
State  V.  Dougherty,  1  West.  L.  J.  271,  p. 

364. 
State  V.  Douglass,  63  N.  C.  500,  p.  323. 
.State  V.  Douglass,  7  Iowa,  413,  p.  553. 
State  V.  Douglass,  28  La.  An.  425,  p.  326. 
State  V.  Dove,  10  Ired.  L.  469,  pp.  21(i,  247, 

250. 
State  V.  Dozier,  2  Speers  L.  211,  p.  68. 
State  V.  Drew,  51  Vt.  56,  p.  ,568. 
State  V.  Dubord,  2  La.  An.  732,  p.  99. 
State  V.  Duestoe,  1  Bay.  377,  pp.  535,  717. 
State  V.  Dumphey,  4  Minn.  438,  pp.  291, 

346,  ?,47,  536. 
State  V.  Duncan,  7  Yerg.  277,  p.  603. 
State  V.  Durham,  72  N.  C.  447,  p.  523. 
State  V.  Earle,  24  La.  An.  38,  p.  1.52. 
State  V.  Easter,  30  Ohio  St.  542,  pp.  603, 

607. 
State  V.  Eldridgc,  65  Mo.  .584,  p.  .534. 
State  V.  P^lkins,  Meigs,  111,  p.  708. 
State  V.  Ellington,  7  Ired.  L.  61,  pp.  216, 

250,  270. 
State  V.  Elliott.  45  Iowa,  486,  p.  307. 
State  V.  England,  19  Mo.  386,  pp.  729,  730, 

7!3. 
State  V.  Englo,  13  Ohio,  490,  p.  389. 
State  V.  English,  1  Murph.  435,  p.  719. 
State  V.  Estes,  3  Lea,  168,  p.  674. 
State  V.  Evans,  29  La.  An.  321,  p.  3S5. 
State  V.  Easset,  16  Conn.  457,  pp.  680,  690, 

693,  694,  695,  698,  739,  740,  744,  747. 
State  V.  Fne,  19  Wis.  963,  p.  647. 
State  V.  Fellows,  2  Hay  w.  340,  p.  693. 
State  V.  Felter,  25  Iowa,  67,  pp.  .597,  615. 
State  V.  Ferray,  22  La.   An.  423,  pp.  99, 

115. 
State  V.  F"isher,2  Nott&  McCord,261,pp. 

101,  339. 
State  V.  Fitzhugh,  2  Oreg.  227,  p.  595. 
State  V.  Fitzpatrick,  8  W.  Va.  707,  pp.  71, 

717. 
State  V.  Flemming,  66  Me.   142,  pp.  608, 

628. 
State  V.  Florez,   5   La.  An.   429,   pp.  291, 

710. 
State  V.  Flower,  Walker  (Miss  ),318,  pp. 

216,  218,2,54,255. 


xliv 


TABLE  OF  CASES  CITED. 


stall"  V.  Klvmi,  4-.'  Iowa,  ir>4,  p.  TiTi. 
State  V.  Kdlko.  '2  l.:i.  An.  744,  pp.   tJT,  709. 
Stato  V.  FoishiuT,  4;!  N.  li.  S'.t,  p.  3.><. 
State  V.  FiLstcr,  !•  Tox.  <■>.■>,  pp.  cm,  (>\2. 
Stato  V.  FowUt,  .V.'  Iowa,  lii.i,  p.  Gl.'i,  (iliO, 

W:{,  0115. 
State  V.  F().\,  1  Gil.  Dec.  35,  pp.  353,  4:58. 
State  V.  Fo.\, !)  N.  J.  L.  244.  i)p.  3'28,  7:M. 
State  V.  Foj.,  -25  N.  J.    L.  .5fi6,  pp.  ^iO,  2,'i8. 
State  V.  Flunk,  23  Lii.  An.  213,   pp.   'SSO, 

385. 
.State  V.  Freeman,  5  t'onn.  34S,  )i.  540. 
.Slate  V.  Fieenian,-21  Mo.  4si,  p.  TXi. 
State  V.  Freeman,  13   N.  II.   488,  pp.  682, 

711,  712. 
State  V.  Fioi.setli,   16  Minn.  296,  pp.   465, 

6!t5. 

State  V.  Fruge,  28  La.  An.    657,  pp.  407, 

445. 
State  V.  Fuente.s,5  La.  An.  427,  p.  19. 
State  V.  Fuller,  .'U  t'onn.  280,  p.  30."). 
State  V.  Fuller,  39  Vt.  74,  i).2r^ 
State  V.  Fiinek,  pp.  340,  342. 
State  V.  Fury.  14  La.  An.  827,  p.  619. 
State  V.  Gainer,  2  Ilayw.   (N.   C.)  140,  p. 

143. 
State  V.  Garhart,  35  Iowa,  315,  pp.  578, 

646. 
State  V.  Garrand,  5  Oreg.  216,  p,  425. 
State  V.  Ganigues,  1  Havw.  241,  p.  353. 
State  V.  Gates,  9  La.  An.  94,  p.  326. 
State  V.  (iay,  25 La.  An.  472,  pp.  123,  152, 

ISO. 
state  V.  George, 8  Uob.  (La.)  535,  pp.  216, 

222,  225,  233. 
State  V.  Gibbs,  39  Iowa,  318,  pp.  615,  742, 

745. 
State  V.  Gibbons,  4  X.  J.  L.  40,  pp.  729, 

730,  731,733,  7;M,  735. 
State  V.  Gibson,  21  Ark.  140,  p.  318. 
State  V.  Gill,  14  So.  Car.  410,  p.  307,  311. 
State  V.  Gilliek,  10  Iowa.  98,  pp.  225,  361, 

387, 494 
State  V.  Gilmore,  9  W.   Va.  641,  pp.   729. 

935. 
State  V.  Given,  32  La.  An.  382,  p.  322. 
State  V.  Glasigow,  Oonf.  (\.  C.)  38,  p.  731. 
State  V.  Glover,  3  G.  Greene,  249,  p.  735. 
State  v.Godfrev,  Bravt.  170,  pp.  213,  255. 
State  V.  (ionzale.s,  26  Tex.  197,  p.  6.52. 
.State  V.  Gradv,  MS.  St.  Louis  Ct.  of  App. 

pp.  700,  72<'i,  745. 
State  V.  Green,  20  Iowa,  424,  p.  288. 
State  V.  Green  wade,  22  Mo.  298,  p.  228. 
.State  V.  Greenwood,  5  Port.  474,  p.  (iOO. 
State  V.  Grittice,  74  N.  G.  316,  pp.  59i,  612, 

(522. 
State  V.  Groonie,  10  Iowa,  308,  pp.  303, 

338,  709. 
State  V.  Guidrv,  'iS  La.    An.  031,   pp.  59, 

100,  120,  225,"277. 
.State  V.  Guilford,  4  Jones  I-.  83,  pp.  732, 

734. 
State  V.  Gunter,  30  La.  An.  .5.39,  p.  98. 
State  V.  Gustin,  5  X.  J.  L.  744,  p  729. 
State  V.  Gut,  13  Minn.  :{41,  p.  114. 
State  V.  Gutienez,  15  La.  An.  190,  p.  10. 
.State  V.    Hamilton,  27  La.   An.  450,  pp. 

2fi6,  308,745. 
State  V.  Hamlin,  47  Conn.  95,  pp.  .589,603, 

607,  690,  742. 
State  V.  Harden,  2  Kich.  L.  .533.  ]).  620. 
State  V.  Hardin,  461owa,  623,  p.  81. 
State  V.  Harding,  2  IJay,  267.  i).  5:$5. 
State  V.  Harlow,  21  Mo.  446,  pp.  ;}.54,  363. 
State  V.  Harris,  30  La.  An.  90,  pp.  67,  322, 

340,  342. 
State  V.  Harris,  73  Mo.  287,  pp.  .5S2,  725. 
State  V.  Harris,  12  Nev.   414,  pp.  :i54,  370. 
State  V.  Harris,  7X.  J.  L.  361,  pp.  328,  734. 


State  V.  Harrison,  19  Ark.  505,  pp.  718, 

720. 
State  V.  Hart,  2!i  Iowa.  2C>8,  p.  61.'i. 
State  V.  Hartman,  46  Wis.  248,  p.  494. 
State  V.  llarwood,  1  Winst.  228,  p.  734. 
State  V.  Haseall,6  X.  H.:{.52.  pp.  71,  113, 

127,  323,  4(16,  441,  4'.'5,  .527,  547. 
State  V.  Haw  kins,  10  Ark.  71,  pp.  603,  646. 
State  V.  Hayden,  5    Vt.  2!«>,  p.  346 
State  V.  Hayden,  45  Iowa,  11,  p.  679. 
State  V.  Hayiies,  54  Iowa,  109,  p.  632. 
State  V.  Haywood,   73  X.   C.  437,  pp.612, 

622,  623. 
State  V.  Hays,  23  Mo.  287,  pp.  287,  295. 
State  V.  Ileuton,  77  N.  ('.  505,  \t.  176. 
Slate  V.  lleinv,  15  La.  .Vn.  2'.i7,  p.  98. 
State  V.  Ileiisley,  7  IJlackL  324,  p.  615. 
State  V.  Hernandez,  4  La.  An.  379,  p.  101. 
State  V.  II(;rndon,  5  lilackf.  75,  pp.  580, 

603,  (il7. 
Slate  V.  Hester,  2  Jones  L.  83,  p.  530. 
State  V.  llieknian,  8  X.  J.  L.  29!t,  p.  73.5. 
State  V.  Hilton,  32  X.H.  285.  p.  6(i4. 
■^tate  V.  Hilton,  41  Tex.  .5(>5,  pp.  729,730. 
State  V.  llinklc,  Kiowa,  380,  pp.217,  615. 
State  V.  Ilodson,  74  X.  C.  151, p.  720. 
State  V.  Hoffpauer,  21  La.  An.  609,  p.  609. 
State  V.  Ilogan,  31  Mo.  342,  pp.  708,  736. 
State  V.  Hogg,  2  Murpb.  (X.  C.)  319,  p.  34. 
State  V.  Holmes,  63  N.  C.  18,  p.  582. 
State  V.  Hopkins,  1  Hay,  .572,  pp.  3:58,  345. 
State  V.  Hopper,  71  Mo.  425,  p.  492. 
State  V.  Home,  9  Kan.  ir.l,  pp.  .540,  5.56. 
State  V.  Hornsby  8  Hob.  (La.)  554,  p.  3&5. 
State  V.  Horton,  63  X.  C.  .596,  pp.  726,  741. 
State  V.  Howell,  3  La.  An.  50,  pp.  99,  100. 
State  V.  Howard,  63  Ind.  502,  p.  2.53. 
State  V.  Howard,  10  Iowa,  101,  pp.  615, 

630,  647. 
State  V.  Howard,  17  N.  H.,  229,  pp.  135, 

215,  222,  276,  239,  340,  .343. 
State  V.  Hoyt,  47  Conn.  418,  pp.   121, 157, 

217,218,220,253,309. 
State  V.  Hugel,27  La.  An.  375,  p.  219. 
State  V.  Hughes,  1  Ala.  6.55,  pp.  638,  719 

721. 
State  V.  Humphreys,  1  Overton,  306,  pp. 

139,  141. 
State  v.  Hunt,  4  La.  An.  438,  pp.  385,  630. 
State  v.  Hurt,  7  Mo.  321,  p.  718. 
State  V.  Igo,  21  Mo.  459,  pp.  353,  3&3. 
State  V.  Ingalls,  17  Iowa,  8,  p.  615. 
State  V.  Ingrahaui,  Glieves  (S.  C.)  78,  p. 

34. 
State  V.  Ivey,  41  Tex.  35,  pp.  289,  291. 
State  V.  Jaekson,  12  La.  An.  679,  p.  101. 
State  V.  Jacobs,  6  Tex.   99,   pp.  583,  635, 

646. 
State  V.  Jennings,  15   Rich.  L.  42,  p.  176. 
State  V.  Johnson,  Walker,  392,  p.  217. 
State  V.  Johnson,  IX.  J.  L.  219,  p.  112. 
State  V.  Johnston,  11  La.  An.  422,  p.  99. 
ctate  V.  Joiner,  19  Mo.  224,  p.  720. 
State  V.  Jolly,  7  Iowa,  15,  p.  708. 
State  V.  Jones,  5  Ala.  Ii6t),  p,  317. 
State  V.  Jones,  61  Mo.  2.52,  pp.  (58,  321. 
State  V.  Jones,  64  Mo.  391,  p.  182. 
State  V.  Jones,  9  N.  J.  L.  357,  pp.  729,  730, 

73L 
State  V.  Jones,  80  X.  C.  4  5,  p.  275. 
State  V.  Jones,  7  Xev.  408,  pp.  4.58,  4.59, 

533. 
State  V.  Judge,  11  La.  An.  79,  pp.  Ill,  .374. 
State  V.  Kane,  32  La.  An.  999,  pp.  90,  99. 
State  V.   Kautman,  .54  Iowa,  578;  «.  c.  9 

Cent.  L.  J.  313,  p.  79. 
State  V.    Kennedy,  8  Uob.  (La.)  590,  pp. 

208,  ;542,  479. 
Ptate  V.  Ketcliey,  70  X.  C.  621,  p.  281. 
State  V.  Keyes,  Smith  (X.  IL),  135,  p.  711. 


TABLE  OF  CASES  CITED. 


xlv 


ijtate  V.  Kilcrease,  (J  So.  Car.  414.  pp.  680, 

682. 
State  V.  Kimball,  29  Iowa,  267,   pp.  086, 

725. 
State  V.  Kimball,  ,^0  Me.  409,  p.  481. 
State  V.  Kimbrougli,  2  Dev.  431,  pp.  710, 

728,  733. 
State  V.  King,  28  La.  An.  425,  p.  326. 
State  V.  Kingsbury,  58  Me.  238.  pp.  225, 

346. 
State  V.  Ivleinback,  2  Speers  L.  418,  p. 

286. 
State  V.  Klinger,  48  Mo.,  224,  pp.  75,  97. 
«tate  V.  Kniglit,  43  Me.  11,  pp.  171,  247. 
State  V.  Knight,  01  Mo.  373,  p.  127. 
State  V.  Lamon,  3  Hawks,  175,  p.  90. 
State  V.  Lautenschlager,  22  Minn.  514, 

pp.  253,  255. 
State  V.  Lantz,  23  Kan.  728,  pp.  428,  481, 

482,  485. 
State  V.  Larkin,  11  Nev.  314,  p.  268. 
State  V.  Lartigue,  26  La.  An.  642,  pp.  217, 

309. 
State  V.  Lassley,  7  Port.  .126,  pp.  606,  733. 
State  V.  Lawrence,  38  Iowa,  51,  pp.  217, 

229. 
State  V.  Lawry,  4  Nev.  161,  p.  583. 
State  V.  Leicht,  17  Iowa,  28,  pp.  196,  206, 

263. 
State  V.  Levy,  5  La.  An.  64,  p.  545. 
State  V.  Lewis,  28  La.  An.  84,  pp.  24,  275, 

277,  299. 
State  V.  Lewis.  3  Hawks,  410,  p.  728. 
.State  V.  Lightbody,  38  Me  200,  p.  628. 
State  V,  Ligon,  7  Port.  167,  pp.  173,  606. 
State  V.  Lifcs,  77  X.  C.  486,  p.  634. 
State  V.  Litchfield,  58  Me,  267,  p.  27.5. 
State  V.  Little,  42  Iowa,  51,  pp.  679,  723. 
State  V.  Logan,  1   Nev.  509,  pp.  693,  701, 

746. 
State  V.  Love,  4  Humph.  255,  p.  668. 
State  V.  Lovenstein,  9  La.  An.  372  n.,  pp. 

75  299    300. 
State 'v.  Loving,  16  Tex.  588,  p.  733. 
State  V.  Ludwig,  70  Mo.  412,  p.  254. 
-Slate  V.  Lumbrick,  1  Car.  L.  Kep.  543,  p 

718. 
State  V.  Lupton,  63  N.  C.  483,  p.  720. 
State  V.  Lytic,  5  Ired.  L.  58,  pp.  88,  353. 
State  V.  Maddox,  1  Lea  (Tenn.),  671,  p. 

636. 
State  V.  Madoil,  12  Fla.  151,  pp.  2l4,  339, 

343,  353,  3i;4. 
State  V.  Mahan,  12  Tex.  283,  pp.  635,  731. 
State  V.  Maloney,  12  R.  1.  251,  p.f;i9. 
State  V.  Mansfield,  41  Mo.  470,  pp.  1,  7, 

8    9 
State  V.'  Marshall,  8  Ala.  302,  pp.  176, 178, 

274,  277,  299. 
State  V.  Marsliall,  36  Mo.  400,  pp.  68,  321. 
State  V.  Martin,  2  Ired.  L.  101,  p.  619. 
Stale  V.  Martin,  28  Mo.  ,530,  p.  233. 
State  V.  Martin,  82  N.  C.  672,  pp.  612,  618, 

627. 
State  V.  Massey,  2  Hill,  (S.  C.)  379,  p.  113. 
State  V.  Matson,  38  Mo.  489,  p.  .534. 
State  V.  Matthews,  80  N.  C.  417,  p.  263. 
State  V.  May,  .50  Ind.  170,  p.  645, 
State  V.  McAfee,  64  N.  C.  3:!9,  p.  26i. 
State  V.  McCann,  Meigs,  91,  p.  719. 
State  V.  McCartey,  17  Minn.  79,  pp.  78,  91, 

582,  701. 
.State  V.  McCarty,  2    Chand.  (Wis.)    199, 

p.  729. 
State  V.  McClear,  11  Nev.  39,  pp.  6,  157, 

177,  223,  225,  724. 
State  V.  McCourtnev,  6  Mo.  649,  pp.  719, 

722. 
State  v.  McCurrv,  63  N.  C.  ^^,  p.  131. 
•State  v.  McDonald,  8  Uo.  283.  p.  715. 


State  V.  McDonald,  8  Oreg.  113,  pp.  338> 

340. 
State  V.  McDonald,  9  W.  Va.  4.56,  pp.  341, 

342,  346,  347. 
State  V.  McElmurray,  3  Strob.  L.  33,  pp. 

71,  357. 
State  V.  McEntire,  2  Car.  L.  Rep.  267,  pp. 

605,  612. 

State  V.  McEvov,  9  So.  Car.  208,  p.  585. 
State  V.  McGrew,  13  Rich.  L.  316,  p.  152. 
State  V.  McJunkln,  7  S.  C.  21,  p.  115. 
State  V.  McLean,  11  La.  An.  ,546,  p.  153. 
State  V.  McLean,  21  La.  An.  546,  p.  342. 
State  V.  McI>endon,  1  Stew.  195,  p.  101. 
State  V.  McLeod,  1  Hawks,  344,  p.  541. 
State  V.  McManus,  4  Humph.  258,  p.  668. 
State  V.  McNamara,  3  Nev.  70,  pp.  583, 

589,  731. 
State  V.  McNlnch,  12  So.  Car.  89,  pp.  148, 

655,  687. 
State  V.  McQuaige,  5  So.  Car.  429,  pp.  125, 

309. 
State  V.  Mttdlicott,  9  Kan.  257,  pp.  219, 

229. 
State  V.  Melvin,  11  La.  An.  535,  p.  210. 
State  V.  Mertens,  14  Mo.  94,  pp.  715,  725. 
State  V.  Mewherter,  46  Iowa,  88,  p.  742. 
State  V.  Jleyers,  68  Mo.  266,  p.  6. 
State  V.  Middleton,  5  Port.  484,  pp.  173, 

606,  633. 

State  V.  Millain,  3  Nev.  409,  pp.  322,  597, 

60S,  6;S). 
State  V.  Miller,  5  Ala.  343,  p.  646. 
State  V.  Miller,  .53  Iowa,  84,  p.  580. 
State  V.  Miller,  26  La.  An.  579,  pp.  59,  120. 
State  V.  Miller,  1  Dev.  &  B.  500,  pp.  354, 

531. 
State  V.  Millican.  15  La.  An.  557,  pp.  540, 

543. 
State  V.  Minis,  26  Minn.  183,  pp.  267,  540. 
State  V.  Mix,  15  Mo.  153,  pp.  354,  363,  395. 
State  V.  Moles,  9  Mo.  6)4,  p.  718. 
State  V.  Monaciuo,  T.  U.  P.  Charl.  22,  p. 

151. 
State  V.  Monk,  3  Ala.  415,  pp.  80,  321. 
State  V.  Montgomery,  7  Ohio  St.  107,  p. 

664. 
State  V.  Mooney,  10  Iowa,  506,  p.  581. 
State  V.  Moore.  28  Ohio  St.  595,  p.  150. 
State  V.  Morea,  2  Ala.  275,  pp.  216,  283, 

301. 
State  V.  Morgan,  20  La.  An.  442,  p.  113. 
State  V.  Morris  Canal  etc.  Co.,  22  N.  J.  L. 

.537,  p.  733. 
State  V.  Morrison,  30  La.  An.  817,  pp.  704, 

713. 
State  V.  Motley,  7  Rich.  L.  .327,  p.  619. 
State  V.  Mullen,  14  La.  An.  570,  p.  208. 
State  V.  Munzenmaier,  24  Iowa,  87,  p. 

580. 
State  V.  ]Murphv,  9  Port.  487.  p.  731. 
State  V.  Murph,   1   VVinst.  (N.  C.)  129,  p. 

76. 
State  V.  Murjjhy,  47  Mo.  274,  p.  715. 
State  V.  Muzingo,  Meigs,  112,  pp.  707,  736. 
State  V.  Myers,  51  Ind.  145,  pp.  582,  645. 
State  V.  Nash,  8  Ired.  L.  35,  p.  88. 
State  V.  Neagle,  65  Me.  468,  p.  116. 
State  V  Negro  Peter,  1  Ga.  Dec.  46,  p.  538. 
State  V.  Nelson,  32  Tex.  71,  p.  36.5. 
Stale  V.  Newer,  7  Blackf.  307,  p.  607. 
State  V.  Newfane,  12  Vt.  422,  pp.  636,  6.37. 
State  V.  Newhouse,  29  La.  An.  824,  p.  115. 
State  V.  Newton,  28  La.  An.  65,  p.  34. 
State  V.  Nixon,  18  Vt.  70,  p.  729. 
State  V.  Norton,  23  N.  J.  L.  33,  p.  731. 
State  V.  O'Brien,  7  R.  I.  336,  pp.  353,  370, 

398. 
State  V.  Off ut,  4  Blackf.  3.55,  p.  744, 
State  V.  OHiradv,  3  Woods.  496,  p.  156. 
State  V.  Oscar,  13  l.a.  An.  297,  p.  664. 


xl 


VI 


TABLE  OF  CASES  CITED. 


State  V.  <)str;in(l«>r,  is  Iowa,  4:r>,  pp.  -lis, 

274,'.'7(;,  ;iC8.  (i|-.,  l^n;,  iJT'.i. 
State  V.  Owen,  I'liill.  L.  42'),  p.  l:!l. 
State  V.  Oxford, ;{()  Tex.  418,  pp.  01-2,  Hi. 
State  V.  Talks,  -21  La.  Aii.  251,  pp.  ;«9, 

341. 
State  V.  raniint,  1(1  Minn.  178,  pp.  362, 

387,  3114.  402. 
State  V.  rariish,  S  IIiiui))h.  80,  p.  ()74. 
State  V.  rate,  Hi  Mo.  4S8,  iip.  5>^,  725. 
State  V.  Pate,  lUisb.  244,  pp.  lilo,  IOC,  31(;. 
State  V.  Patrick,  3  Jones  L.  443,  pp.  283. 

339,  342. 
State  V.  Patterson,  45  Vt.  30S,  pp.  420,  421, 

425. 
State  V.  Perkins,  (Mi  N.  C.  126,  p.  297. 
State  V.  Penv.  Husbee,  (X.  C.)   330,  pp. 

67,  76,  184,  688. 
State  V.  Peterson,  21  Ark.  140,  p.  329. 
State  V.  Peterson,  2  La.  An.  791,  pp.  728, 

731. 
State  V.  Petrie,  25  La.  An.  38(>,  p.  113. 
State  V.  Pliair,  48  Vt.  366,  p.  214. 
State  V.  Phillips,  2  Ala.  297.  p.  69. 
State  V.  Pliillli)s,  28  La.  An.  387,  p.  326. 
State  V.  Phillips,  24  Mo.  475,  p.  76. 
State  V.  Pierce,  8  Iowa,  231,  pp.  291,  .580. 
State  V.  Pike,  II  Am.  L.  IJef,'.  223,  p.  220. 
State  V.  Pike,  (55  Me.  Ill,  p.  .540. 
State  V.  Pike,  20  X.  H.  344,  pp.  341,  .347, 

472. 
State  V.  Pike,  49  X.  H.  406,  pp.  157,  269. 

291. 
State  V.  Pile,  5  Ala.  74,  pp.  328,  329,  619, 

729. 
State  V.  Pitts,  58  Mo.  .5.56,  pp.  127,  297. 
State  V.  Populus,  12  La.  An.  710,  pp.  385, 

394. 
State  V.  Potter,  18  Conn.  166,  pp.  134,  171, 

215,  216,  273,  294,  295,  316,  327. 
State  V.  Powell,  7  N.  J.  L.  244,  p.  335. 
State  V.  Powell,  24  Tex.  135,  pp.  709,  716. 
State  V.  Preseott,  7  X.  H.  287,  pp.  381,382, 

462. 
State  V.  Price,  3  Mo.  App.  .568,  p.  98. 
State  V.  Price,  11  X.  J.  L.  203,  pp.  729,  730, 

733,  734. 
State  V.  Price,  10  Rich.  L.  .-^51,  p.  309. 
State  V.  Piimrose,  3  Ala.  .546,  p.  24. 
State  V.   Pritchard,  15  Xev.  74,  pp.  209, 

292,  296,  299. 
State  V.  Push,  23  La.  An.  14,  p.  180. 
State  V.  Putnam,  1  X.  J.  L.  260,  p.  328. 
State  V.  (^larrel,  2  P.av.  1.50,  pp.  338,  :U2. 
State  V.  (,>niuil)v,  51  Me.  395,  pp.  571,  nl2. 
.State  V.  Ha<ilan"(l,  75  N,  C.  12,  p.  174. 
State  V.  Hand,  33  N.  II.  2'6.  pj).  603,  619. 
State  V.  Itavniond,  11  Xev.  98,  pp.  123, 

216,  247,  300,  .'JOS,  3119. 

State  V.  Keed,  47  X.  H.  466,  pp.  1.53,  1.55. 
State  V.  Reeves,  11  La.  An.  686,  pp.  89,  98, 

208,  300. 
State  V.  Reid,  20  Iowa,  413,  pp.  .585,  586. 
Slate  V.  Reid,  28  La.  An.  3>7,  p.  326. 
State  V.  Revolls,  31  La.  An.  387,  |..  .58. 
State  V.  Rickey,  9  X.  J.  L.  293,  pp.  631, 

637,  638. 
State  V.  Kickev,  10  X.  J.  L.  83,  pp.  589, 

603,  607. 
Stale  V.  I{ick.<»,  .32  La.  An.  1098,  p.  219. 
Sta'e  V.  RifTf,',  10  Xev.  2H4,  i)p.  271,  323. 
State  V.  Roberts,  2  Dev.  &  B.  540,  pp.  694, 

72(!,  736. 
State  V.  Robinson,  29  X.  H.  274,  p.  719. 
State  V.   Robinson,  2  Lea,  114,   pp.  668, 

674. 
State  V.  Rockafellow,  6  X.  J.  L.  322,  pp. 

328,  592,  617. 
State  V.  Roderigas,  7  Xev.  .328,  pp.  289, 

295,  322. 
State  V.  Rogers,  37  Mo.  367,  p.  718. 


State  V.  RohlrLseht,  12  La.  An.  382,  p. 

717. 
State  V.  Rollins.  22  N.  11.  .528,  p.  316. 
State  V.  Ross,  30  l.a.  An.  1,5.54,  pp.  87,  300. 
.state  V.  Rosscau,  2S  La.  \n.  579,  p.  277. 
Sta'e  V.  Rountree,  .32  l.a.  An.  1144,  p.  99. 
State  V.  Rousseau,  28  La.  \n.  579,  p.  17s, 
State  V.  Rvan,  13  .Minn.  370,  pp.  21,  1.57, 

361. 
state  V.  Sales,  2  Xev.  268,  j).  436. 
State  V.  Salge,  1  Nev.  4.55,  p.  174. 
State  V.  Sater,  8  Iowa,  420,  p.  217. 
State  V.  .Scott,  25  Ark.  107,  p.  720. 
State  V.  Scott,  45  Mo.  302,  i)]).  474,  475. 
State  V.  Schnapper,  22  La.  An.  43,  p.  203. 
State  V.  Schoenwald,  31  Mo.  147,  p.  329. 
State  V.  Seaborn,  4  Dev.  305,  pp.  121,  605, 

612,  622,  72 S. 
State  v.  Sharp,  cited.  6  \.  J.  L.  332,  p. 

328. 
State  V.  Shaw,  5  La.  An.  342,  p.  .322. 
State  V.  Shaw,  3  Ired.  L.  532,  pp.  148,  181,. 

267. 
State  V.  Shay,  30  La.  An.  114,  pp.  101,  303, 

:146. 
State  V.  Sheeley,  15  Iowa.  404,  p.  196. 
State  V.  Shehane,  25  Mo.  .565,  p.  .534. 
State  V.  Shelledy,   8  Iowa,  447,   pp.  225, 

274,291,299,  .340,  342. 
State  V.  Sherbourne,  Dudley  (Ga.)  28,  p. 

380,  403. 
State  V.  Slack,  1  Bailey  (S.  C),  330,  p. 

323. 
State  V.  Simmons,  «  Jones  L.  309,  p.  70. 
State  V.  Sims,  2  Bailey,  (S.  C.)  29,  pp.  2  8,. 

State  V.  Smalls,  11  So.  Car.  262.  p.  286. 
State  V.  Small  wood,  78  X.  C.  560,  p.  .54i. 
State  V.  Smith,  31  La.  An.  40(5,  p.  025.' 
State  V.  Smith,  (n.Mc.  328,  p.  627. 
State  V.  Smith,  20  Minn.  376,  p.  29.3. 
State  V.  bmith,  20  Ired.   L.  402,  pp.  148, 

152. 
State  V.  Smith,  80  X.  C.  410,  635. 
State  V.  Snnth,  6  R.  1.33,  pp.  491,  493. 
State  V.  Smith,  Mnlgs,  99,  p.  674. 
State  V.  suvder,  20  Kan.  306,  p.  429. 
State  V.  Soper,  16  .Me.  293,  p.  1.52. 
State  V.  Sparrow,  3  Murph.  487,  pp.  451, 

457,  4.58. 
State  V.  Spaulding,  24  Kan.  1,  p.  216. 
State  V.  Spencer,  21  X.  J.  L.  197,  pp.  218, 

229,  258. 
State  V.  Sprinkle,  65  X.  C.  463,  pp.  729,. 

731. 
State  V.  Squaires,  2  Xev.  226,  pp.  73, 121, 

247. 
State  V.  Squire,  10  X.  H.  .560,  pp.  70-i,  713. 
State  V.  Staley,  3  Lea,  565,  p.  674. 
State  V.  Stalmaker,  2  Brevard,  1,  p.  148. 
State  V.  Stanlev,  33  Iowa,  .526,  p.  724. 
State  V.  Stark,  72  Mo.  37,  p.  428. 
State  V.  Stediuan,  7  Port.  49^,  pp.  69,  629,. 

710. 
State  V.  Steelev,  r>5  Mo.  218,  p.  287. 
.State  V.  S  ephens,  11  So.  Car.  319,  pp.  92, 

.301,. 322. 
State  V.  stepheng,  13  So.  Car.  2a5,  pp.  7.5, 

148. 
State  V.  .Stevens,  36  X.  H.  .59,  p.  66t. 
S'ate  V.  Stokely.  16  Minn.  282,  pp.  73,  .540, 

.544. 
State  V.  .Stoughton,  51   Vt.  .362,  pp.  1.52, 

153. 
State  V.  Straudi-r,  11  W.  Va.  745,  pp.  .340, 

343. 
State  V.  Summers,  4  T-a.  An.  26,  p.  429. 
State  V   Swayze,  2  Cr.   L.  Mag.  261,  pp. 

607,608.    " 
State  V.  Swift,  14  La.  .\n.  827,  p.  646. 


TABLE  OF  CASES  CITED. 


xlvii 


State  V.  Syinonds,  36  Jle.  128,  pp.  57",  603, 

644. 
State  V.  Taggart.38  Me.  298,  p.  709. 
State  V.  Tatro,  50  Vt.  483,  p.  214. 
State  V.  Taylor,  8  Blackf.  178  p.  633. 
State  V.  Taylor,  20  Kan.  643,  p.  484. 
fctate  V.  Tazwell,  30  La.  An.  884,   pp.  180, 

647,  732. 
State  V.  Terry,  30  Mo.  368,  pp.  667,671. 
State  V.  Thayer,  4  Strobli.  L.  286,  p.  629. 
State  V.  Thon:as,32  La.  An.  349,  p.  322. 
State  V.  Thomas,  19  Minn.  484,  p.  177. 
J^tate  V.  Thompson.  20  N.  H.2.?0,p.  664. 
State  V.  Thompson,  9  Iowa,  188,  p.  232. 
State  V.  Thorne,  81  K.  C.  555,  p.  194. 
State  V.  Tighlman,  11  Irecl.  L.  513,   pp. 

530,531. 
State  V.  Tindall,  10  Rich.  L,  212,  pp.  486. 

499,  503,  540. 
.State  V.  Tinney,  26  La.  An.  460,  p.  709. 
State  V.  Toby,  31  La.  An.  756,  p.  98. 
State  V.  Tom,  8  Oreg.  177,  pp.  270,  271. 
State  V.  Tompkins,  71  JIo.  613,  pp.  471, 

474,  488. 
State  V.  Town,  Wright  (Ohio),  75,  p.  451. 
State  V.  Tucker,  10  La.  An.  501,  pp.  385, 

530. 
State  V.  Tucker,  20  Iowa,  iJOS.  p.  693. 
State  v.TuUer,  34  Conn.  294,  p.  304. 
State  V.  Turner,  6  La.  An.  309,  pp.  341, 

343. 
State  V.  Turner,  25  La.  An.  573,  pp.  99, 

324,  3.53,  370,  .526. 
State  V.  Turner,  6  Baxt.  201,  p.  521. 
State  V.  Underwood,  57  Mo.  40,  pp.  540, 

547. 
State  V.  Underwood,  6  Ired.  L.  96,  pp. 

323,  019. 
State  V.  Underwood,  2  Overton,  92,  p. 

230. 
State  V.  Upton,  20  Mo.  397,  p.  4.58. 
State  V.  Vahl,  20  Tex,  779,  pp.  597,  619. 
State  V.  Van  Buskirk,  59  Ind,  384,  p.  747. 
State  V.  Vance,  31  La.  An,  398,  p.  115. 
State  V.  Van  Matre,  49  Mo.  268,  pp.  6,  9. 
State  V.  Vann,  82  X.  C.  631,  p.  300. 
State  V.  Vegas,  19  La.  An.  105,  p.  73. 
State  V.  Vestal,  82  N.  C.  .563,  p.  300. 
State  V.  Vogel,  22  Wis.  4T1,  pp.  177,3  5. 
State  V.  Walcott,  21  Conn.  272,  pp.  661, 

670,  692,  693,  694,  725. 
State  V.  Wall,  15  Mo.  208,  p.  5.34. 
State  V.  Wall,  9  Yerg.  349,  p.  171. 
State  V.  Wallahan,  Tappan,  52,  p.  3(54. 
State  V.  Wammack,  70  Mo,  410,  p.  742. 
State  V.  Ward,  14  La.  An.  673,  pp.   100, 

206,  219,  233,  263. 
State  V.  Ward,  2  Hawks,  443,  p.  324. 
State  V.  Ward,  39   Vt.  225,  pp.  208,  209. 

275. 
State  V.  Wart,  51  Iowa,  587,  pp.  361,  370, 

428. 
State  V.  Waters,  62  Mo.  196;    s.  c,  1  Mo. 

App.  7,  p.  282. 
State  V.  Waters,  1  Mo.  App.  7,  p.  101. 
State  V.  Watson,  31  La.  An.  379,  pp.  619, 

647,  732. 
State  V.  Webster,  13  N.  H.  491,  pp.  225,  664. 
State  V.  Welch,  33  Mo.  33,  pp.  597,  598,  610. 
State  V.  Wells,  46  Iowa,  662,  p.  186. 
State  V.  West,  69  Mo.  401,  pp.  176,  203,  208. 

209, 458. 
.State  V.  White,  7  La.  An.  531,  p.  99. 
State  V.  White,  (58  >'.  C.  1.58,  p.  339. 
State  V.  VVhitford,  12  Ired.  L.  99,  p.  32. 
State  V.  Whitman,  14  Rich.  L.  113,  |..  275. 
State  V.  Whitney,  7   Oreg.  386,  pp.  686. 

687. 
State  V.  Wilburne,  2  Brev.  296,  p.  703. 
State  V.  Wilhite.  11  Humph.  602,  p.  703. 
State  V.  Willard,  79  N.  C.  660,  p.  34. 


State  V.  Williams,  5  Port.  130,  p.  606. 
State  V.  Williams,  3  Stew.  454,  pp.  59,  67, 

120,  218,  229, 301,  (506. 
State  V.  Williams,  30  Me.  484,  pp.  185,  275. 
State  V.  Williams,  2  McCord,  301,  p.  731. 
State  V.  Williams,  2  Hill  (S.  C  ),  381,  pp. 

92,  173,  283,  323. 
State  V.  Williams,  1  Dev.  &  B.  372,  pp. 

31,  34. 
State  V.  Williams,  1  Rich.  L.  188,  p.  68. 
State  V.  Williamson,  42  Conn.  261,  p.  359. 
State  V.  Wills,  11  Humph.  222,  p.  608. 
State  V.  Wilson,  8  Iowa,  407,  pp.  190,  264. 
State  V.  Wilson,  38    Conn.   126,  pp.  214, 

216,  220. 
State  V.  Wilson,  48  N.  H.  398,  pp.  21,  157, 

299. 
State  V.  Wincroft.  76  N.    C.  38,  pp.  174, 

176,  251. 
State  V.  Wise,  7  Rich.  L.  412,  pp.  148, 152. 
State  V.  Wolcott,  21  Conn.  272,  pp.  661, 

670,  692.  693,  694,  725. 
State  V.  Wood,  53  N.  H.  484,  pp.  740,  744. 
State  V.  Woodson,  41  Iowa,  425,  p.  433. 
State  V.  Worthingham,  23  Minn.  .528,  p. 

316. 
State  V.  Wright,  53  Me.  328,  p.  38. 
State  V.  Yancey,  3  Brev.  306,  p.  151. 
State  V.  Y'ancey,  1  Const.   Rep.   (S.  C.) 

237,  p.  729. 
State  V.  Zellers,  7  N.  J.  L.  220,  p.  254. 
St.  Anthony  Falls  W.  P.  Co.  v.  Eastman, 

20  Minn.  277,  p.  291. 
St.  Louis  V.  State,  8  Neb.  405,  p.  208. 
St;  Louis  Brewery  Co.  v.  Bodenuin,  MS. 

St.  Louis  Ct.  of  Appeals,  p.  520. 
St.  Louis,  etc.  R.  Co.  V.  Casner,  72  111. 

384, p.  284. 
St.  Louis,  etc.  R.  Co.  v.  Lux,  63  111.  523, 

p.  307. 
St.  Louis,  etc.  R.  Co.  v.  Myrtle,  51  Ind. 

566,  p.  .521. 
St.  Louis,  etc.  R.  Co.  v.  Wheelis,  72  111. 

538,  u.  282. 
St.  Martin  v.  Desnoyer,  1  Minn.  156.  pp. 

510,  514,  .542.  547. 
Staup  V.  Com.,  74  Pa.  St.  458,  pp.  222,  223, 

225,  236. 
Steele  v.  Logan,  3  A.  K.  Marsh.  394,  p. 

540. 
Steele  v.  Maloney,  1  Minn.  347,  pp.  322, 

339,  341. 

Steele  v.  State,  1  Tex.  142,  pp.  693,  724. 
Stephens  v.  People,  38  Mich.  739,  pp.228, 

236,240,243,254. 
Stephens  v.  People,  19  N.  Y'.  549,  pp.  387, 

395. 
Stepiiens  v.  People,  4  Park.  Cr.  R.  396 

pp.  358,  363,  380. 
Steptoe  V.  Flood,  31  Gratt.  323,  pp.  541, 

■543. 
Sterling  Bridge  Co.  v.  Pearl,  80  111.  251, 

p.  291. 
Stevens  v.  People,  38  Mich.  739,  p.  269. 
Stevenson  v.  Stiles,  3  N.  J.  L.  543,  p.  247. 
Stewart  v.  Burlington    etc.  R.  Co.,  11 

Iowa,  62,  pp.  481,  482,  540,  5.54. 
Stewart  v.  Ewbank,  3  Iowa,  191,  pp.  304, 

340,  342,  347. 

Stewart  v.  People,  23  Mich.  63,  p.  231. 
Stewart  V.  State,  13  Ark.  720,  pp.  77,99, 

214,231,251,300,  308,618. 
Stewart  v.  State,  58  Ga.  577,  pp.  152,  347. 
Stewart  v.  State,  23  Ga.  181,  p.  :34. 
Stewart  v.  State,  24  Ind.  42,  pp.  658,  695. 
Stewart  v.  State,  1  Ohio  St.  66,  pp.  276, 

312. 
Stewart  v.  State,  15  Ohio  St.  1.95,  p.  306. 
Stinson  v.  State,  5  Tex.  App.  31,  p.  329. 
Stites  V.  McKibben,  2  Ohio  St.  588,  pp. 

472,  479. 


xlviii 


TABLE  OF  CASES  CITED. 


stix  V.  Pump,  :?7  tin.  MVl,  p.  :VM. 
Stowbiill  V.  Anst'll,  C'oinli.  lit;,  p.  740. 
Stoikw fU  V.  Kiiilroutl  Co.,  4:i  Iowa,  470, 

pp.  445,  Tillt. 
Stokes  V.  People,  5:J  X.  Y.  1(U,  pp.  -21, 1,57, 

•240. 
Stokes  V.  State,  '24  Miss.  021 ,  pp.  (504,  (>-23. 
Stokes  V.  State,  5  Uaxt.  (Tenii.)  (jl9,  p. 

."ili*. 
Stone  V.  Bird,  IG  Kan.  488,  p.  394. 
Stone  V.  People,  3  111.  3'2(J,  pp.  301,  323, 

.'j81,.t8<»,  (Sl'.t. 
Stone  V.  Scgiir,  11  Allen,  .">C>8,  p.  ].")."). 
Stone  V.  state,  4  Humph.  '27,  pp.  380,  458, 

■")38,  r>:V.),  .147. 
.stone  V.  State,  30  Inil.  11.'),  p.  6-29. 
Storov  V.  People,  7it  III.  4.'),  p.  (5.')3. 
Stott  V.  Smith,  70  Ind.  iiKS,  p.  oU. 
Stout  V.  Hyatt,  13  Kan.  ■23-2,  pp. '275,  309. 
Stout  V.  People,  4  Park.  Or.  R.  132,  pp. 

•211,'21G,  iii, -284. 
Straker  v.  Graham,  4  Mee.  &  W.  721; 

s  c,  7  Dowl.  P.  C.  2-23,  pp.  514,  543. 
Strauder  v.  State,  100  U.  S.  303,  p.  26. 
Straushan  v.  State,  10  Ark.  37,  pp.  583, 

646. 
Strawn  v.  Cogswell,  28  111.  457,  p.  202. 
Stroll  V.  Hinchman,  37  Mich.  490.  p.  1.55. 
Stronji  V.  Kean.  13  Irish  L.  93,  p.  321. 
Strvker  v.  TurnbuU,  3  Caines,  103,  p.  16. 
Stubber  V.  Wall,  1  Craw.  &  Dix.  (Irish) 

Cir.  .54,  p.  111. 
Studley  v.  Hall,  22  Me.  198,  pp.  225,  452, 

464. 
Studstill  V.  State,  7  Ga.  2,  p.  709. 
Stumm  V.  Hummel,  39  Iowa,  478,  p.  197. 
Sturdivant  v.  Watkins,  47  Mo.  177,  p.  .534. 
Stutsman  v.  Barringer,  16  Ind.  363,  p. 

353. 
Sumrall  v.  State,  29  Miss.  202,  p.  116. 
Sutliff  V.  Gilbert,  8  Ohio,  405,  pp.  388,389, 

391,  392. 
Suttle  V.  Batie,  1  Iowa,  141,  pp.  88,  279. 
Sutton  V.  State,  9  Ohio,  l;»,  p.  13. 
Sutton  V.  State,  41  Tex.  513,  p.  316. 
Suttrell  V.  Dry,  1  Murph.  94,  p.  .540. 
Swan  &  .letfery's  Case,  Foster  Cr.  L.  104, 

p.  151. 
Swan's  Case,  16  Mass.  220,  p.  32. 
Swatm  V.  Ray,  3  Blackf.  298,  p.  318. 
Swarnes  v.  Sitton,  58  111.  155,  pp.  341,  343. 
Swart  V.  Kimball,  11  Cent.  L.  J.  71,  p.  4. 
Swett,  He.,  20  Pick.  1.  p.  34. 
Swigart  v.  State,  67  Ind.  287,  p.  202. 
Swiss  V.  Stockstill,  30  Ohio  St.  418,  p.  270. 
Swofford  V.  State,  3  Tex.  App.  76,  pp.  99, 

109,  3:55. 
Svkes  V.  Dunbar,  Sel.  N.  P.  1091,  pp.  670, 

742. 
Symons  v.  Si)inosa,  3  Dyer,  357,  pi.,  (45), 

p.  18. 

T. 

TaUman  v.  Wood  worth,  2  Johns.  385, 

pp.  Ill,  303. 
Talraadge  v.  Northrop,  1  Root,  4.54,  p. 

339. 
Tatum  V.  Preston,  .53  Miss.  &>4,  pp.  291, 

292. 
Tatum  V.  Young,  1  Porter,  298,  p.  298. 
Taylor  v.  Betsford,  13  Johns.  487,  pp.420, 

427. 
Taylor  V.  Cal.  Stage  Co.,  6  Cal.  228,  p. 

448. 
Taylor  v.  Everett,  2  How.  Pr.  23,  pp.  428, 

431,  432,  439,  .541,  .543. 
Taylor  V.  Giger,  1  llurdin,  .586,  pp.  .540, 

542. 
Tavlor  V.  Greeley,  3  Me.  204,  pp.  .339,  342, 
■346. 


Tavlor  V.  State,  .52  Miss.  65,  p.  4.34. 
Tavlor  V.  State,  3  Tex.  App.  169,  pp.  289; 

"295. 
Tavlor  v.  Western  Paeifle,  45  Cal.  323,  p. 

'282. 
Temi)le  v.  Sumner,  Smith,  (N.  H.)  226, 

pp.  213,  254,  340,  M-i. 
Terai)leton  v.  State,  5  Tex.  App.  399,  p. 

451. 
Tenney  v.  Evans,  13  N.  II.  462,  pp.  338, 

346;  .547. 
Terrell  v.  Com.,  13  Bush,  246,  p.  268. 
Territory  v.  Anderson,  1  Wyoming,  20, 

p.  724. 
Territory  V.  Doty,  1  Pinney,  (Wis.)  396, 

pp.  76,  87,  288. 
Territory  v.  Ingersoll,  3  Mont.  4.54,  iip. 

59<),  616. 
Territory  v.  Kennedy,  3  Mont.  .520,  p.  3  "3. 
Thaver  V.  People,  2  Doug.  417,  pp.  589, 

.592,  6:52. 
Thayer  v.  Van  V'leet,  6  X.  H.  172,  p.  423. 
Thoinas  v.  Chapman,  45  Barb.  98,  pp, 

431,  432,  439. 
Thomas  v.  Com.,  2  Va.  Cas.  479,  p.  384. 
Thomas  v.  Com.,  2  Rob.  (Va.)  795,  p.  744. 
Tiiomas  V.  Croswell,  4  Johns.  491,  p.  17> 
Thomas  v.  Jones,  28  Gratt.  383,  pp.  541, 

544. 
Thomas  v.  People,  39  Mich.  36;i,  p.  46. 
Thomas  v.  People,  67  X.  Y.  218,  pp.  242, 

2(!9,  270, 
Thomas  v.  Rumsey,  4  Johns.  482,  p.  17. 
Thomas  v.  State,  27  Ga.  287,  p.  274. 
Thomas  v.  State,  5  How.  (Miss.)  20,  pp. 

123,  731. 
Thomas  v.  State,  36  Tex.  315,  pp.  194,228. 

241. 
Thomas'  Case,  1  Dj-er,  99,  pi.,  (67),  p.  20. 
Thomason  v.  State,  2  Tex.  App.  550,  pp. 

.597,  615,  733. 
Thompson  v.  Blackwell,  17  B.  Mon.  624,. 

p.  328. 
Thompson  v.  Com.,  8  Gratt.  637,  pp.  339, 

451,4,58,509,512,  5l3. 
Thompson  v.  Gibson,  8  Mee.  &  W.  281, 

p   1.5. 
Thompson  v.  Mallet,  2  Bay,  94,  p.  520* 
Thompson  v.  Paige,  16  Cal.  78,  p.  339. 
Thompson  v.  People,  3  Park.  Cr.  R.  467, 

p.  2(56. 
Thompson  v.  State.  26  Ark.  323,  pp.  433, 

523,  539. 
Thompson  v.  State,  9  Ga.  210,  p.  647. 
Thompson  v.  State,  24  Ga.  2'.I7,  p.  217. 
Thompson's  Case,  4  Leigh.  (577,  p.  631. 
Thomson  v. People,  24  111.  60,  p.  226. 
Thorne  v.  Londonderry,  8  Bing.  26,  p- 

14. 
Thrall  v.  Lincoln,  28  Vt.  3.56,  pp.  2.U,  347. 
Thrall  v.  Smiley,  9  Cal.  529,  pp.  323,  413 

415,485. 
Thrift  v.  Redman,  13  Iowa,  25,  p.  417. 
Tidewater  Canal  Co.  v.  Archer,  9  Gill.  & 

J.  479,  pp.  32S,  339,  343. 
Tiernan  v.  Trewick,  2  Utah,  .393,  p.  418. 
Tillman  v.  Allies,  5  Smed.  &  M.  373,  p.  5. 
Tilton  V.  Kimball,  ,52  Me.  .500,  p.  304. 
Tindall's  Case,  Cro.  Car.  29',  p.  282. 
Tindle  v.  Xieliols,  20  Mo.  326,  p.  745. 
Tii)ton  V.  State,  Peck,  308,  p.  729. 
Todd  v.  Boone  Co.,  8  Mo.  431,  p.  .521. 
Todd  V.  Branncr,  .30  Iowa,  439,  p.  .531. 
Tomer  V.  Dcnsmore,  8  Neb.  .384,  p.  .303. 
Tomlin  v.  Cox,  19  X.  J.  L.  76,  pp.  438,  442. 
Tomlinson  v.  Crooke,  E.   10  Jac.  1,  p. 

469. 
Tomi)son  v.  Mnssey,  3  Me.  305,  p.  740. 
Tooel  v.  Cora.,  11  Leigh,  714,  pp.  301,  385, 

386. 
Tooke's  Case,  25  How.  St.  Tr.  1,  p.  146. 


TABLK  OF  CASES  CITED. 


xlix 


Toonev  v.   State,  8  Tex.  App.  452,  pp. 

;507,"  so;). 
Torbock  v.  Lainy,  5  Jur.  318,  p.  333. 
Ton-v  V.  Holmes,  10  Conn.  Um,  p.  5-27. 
Tower  v.  Hewett,  11  Johns.  134,  p.  5'iu. 
Towle  V.  State,  3  Fla.  2G-2,  pp.  721,  722. 
Townley's  Case,  Foster  C.  L.  7,  p.  282. 
Townsencl  v.  Jeffries,  17  Ala.  276,  p.  318. 
Townsenrt  v.  State,  2  Blackf.   L51,  p.  714. 
Traill  V.  Collins,  2  Pick.  145,  p. 527. 
Trembly  v.  State,  20  Kan.  116,  pp.  67,  78. 
Tremor  v.   Central  Pac.  R.  Co.,  50  Cal. 

222,  pp.  270,  309. 
Trimble  V.  Stiite,  3  G.  Greene,  404,  pp. 

210,  230. 
Trinidad  v.  Simpson  (Sup.  Ct.  Colo.),  22 
.      Alb.  L.J.  409;  s.  c,  10  Cent.  L.  J.  149, 

pp.  176,  178. 
Trii>p  V.  Countv  Comrs..  2  Allen,  556,  pp. 

426,  454,  458,  464,  529, 532. 
Trohan  v.   Mcilanus,  2  La.  An.  209,  p. 

547. 
Troxdnle  v.  State,  9  Humph.  411,  pp.  225, 

342. 
True  V.  Plumley,  36  Me.  466,  p.  394. 
Trueblood  v.  State,  1  Tos.  App.  650,  pp. 

304,  339,  343. 
Ti-ullin<fer  v.  Webb,  3  Ind.   198,  pp.  Ill, 

184,  2.54,  255. 
Tucker  v.  Mass.  Central  Railroad,  116 

Mass.  124,  p.  426, 
Tucker  v.   South  Kingston,  5  R.  I.  558, 

pp.  406,  512. 
Tucker's  Case,  8  Mass.  2"6,  pp.  590,  698. 
Turk  V.  State,  7  Ohio   (Ft.  II.),  240,   pp. 

651,  652,  655,  693,  726. 
Turner  v.  Hahn,  1  Colo.  23,  pp.  358,  342. 
Turner  v.  Kelley,  10  Iowa,  573,  p.  499, 
Turner  v.  Peoi)le,  33  Mich.  .303,  p.  6(54. 
Turner  v.  St.  John,  3  Coldw.  376,  p.  440. 
Turner  v.  State,  9  Humph.   119,  pp.  322, 

729,  730. 
Turner  v.  Tuolumne  Co.,  25  Cal.  397,  pp. 

510,  514,516,  556. 
Turns  v.  Com.,  6  Met.  224,  pp.  6,  591,  707, 

716,  730. 
Turpen  v.  Booth,  56  Cal.  65,  p.  749. 
Turpin  v.  State  (Sup.  Ct.  Md.,Oct.  1880), 

2  Crim.  L.  Mag.  532,  pp.  148,  291, 
Tuttle  V.  State,  2  Tex.  App.  560,  p.  194. 
Tuttle  V.  State,  6  Tex.  App.  556,  pp.  109, 

307,  309,  458. 
Tweed's  Case,  13  Abb.  Pr.  (N,  S,)  371,  n. 

p.  301. 
Tweedy  v.  Briggs,  31  Tex.   74,  pp.  339, 

342. 
Tweedy  v.  Brush,  Kirbv,  13,  p.  338. 
Twitchell  v.  Com.,  7  Wall,  321,  p.  661. 
Tyra  v.  Com.,  2  Mete.  (Ky.)  1,  p,  10. 

u. 

Ulmer  v.  State,  14  Ind.  52,  p.  585. 

Ulrich  V.  People,  39  Mich.  245,  pp.  216, 

240. 
Union  Gold  M.   Co.  v.  Rockv  Mountain 

Mat.  Bank,  2  Cal.  .56i,  pp."217,  251. 
Union  Sav.  Bank  v.  Edwards,  47  Mo.  445, 

p.  16. 
United  States  v.  Ambrose,  3  Fed.  Rep. 

283,  pp.  606,  622,  636. 
United  States  v.  Babcock,  3  Dill.  566,  pp. 

675,  676. 
United  States  v.  Baker,  3  Bened.  68,  pp. 

340,  342. 
United  States  v.  Black,  2  Cranch  C.  C. 

195, p.  142. 
United  States  v.  Blodgett,  35  Ga.  336,  pp. 

257.  589, 592,  689,  690. 
United  States  v.  Borger,  7  Fed.  Rep.  193 ; 

s.  c,  12  Reporter,  134,  pp.  191,201. 
United  States  v.  Boyden,  1  Lowell,  266, 

p.  527. 

(O 


United  States  v.  Brown,  1  Sawy.  531,  pp. 

612,  694,  005,  747. 
United  States  v.  Browning,  1  Cranch  C. 

C.  330,  p.  141. 
United  States  v.  Bntler,  1  Hughes,  457, 

pp.  148,  2S4,  617,  701. 
United  States  v.  Byrne,  7  Fed.  Rep.  455, 

p.  300. 
United  States  v.  Carnot,  2  Cranch  C.  C. 

409,  p.  19. 
United  States  v.  Carr,  2  Cranch  C.  C.  439. 

P,  721. 
United  States  v.  Carrigo,  1  Cranch  C.  C. 

49,  p.  142. 
United  States  v.  Chaffer,  2  Bond,  147,  p. 

438. 
United  States  v.  Charles,  2  Cranch  C.  G~ 

76,  pp.  740,  746. 
United  States  v.  Clarke,  2  Cranch  C.  C. 

152,  p.  482. 
United  Stales  v.  Collins,  1  Woods,  49», 

pp.  40,  50,  51. 
United  States    v.  CoUver,    AYhart,    on 

Horn.  (App  )  489,  p."l52. 
United  States  v.  Coolidge,  2  Gall.  364,  pp. 

693,  726. 
United  States  v.  Coppersmith,    4  Fed.. 

Rep.  198,  p.  150. 
United  States  v.  Cornell,  2  Mason,  91, 

pp.  207,  255,  277,  281. 
United  States  V.  Cottiaghara,  2  Blatch. 

470,  pp.  142,  1.56. 
United  States  v.  Craig,  2  Cranch  C.  C. 

30,  p.  170. 
United  States  v.  Cropper,  Morris,  190,  p. 

027. 
United  States  v.  Devaughan,  3  Cranch  . 

C.  C.  84,  pp.  214,  43-i. 
United  States  v.  Devlin,  7  Int.  Rev.  R- 

94;  s.  c.  0  Blatch.  71,  p.  150. 
United  States  v.  Douglass,  2  Blatch.  207, 

p.  148. 
United  States  v.  Dow,  Taney  Dec.  34,. 

pp.  50,  142. 
United  States  v.  Duff  (U.  S.  Cir.  Ct.  S.  D, 

X.  Y.),  6  Fed.  Rep.  45,  pp.  106,  201,  226, 

263. 
United  States  v.  Farrington,  2  Crim.  L.. 

Mag.  525;  s.   c,  5  Fed.  Rep.   343,  pp. 

687,  693,  695,  726,  741,  747. 
United  States  v.  Flanakin,  Hempst.  30, 

p.  718. 
United  States   v.  Fourteen   Packages, 

Gilp.  230,  p,  230. 
United  States  v.  Fries,  3  Dall.  515,  pp. 

50,  75,  338. 
United  States  v.  Fuer,  12  Int.  Rev.  Rec. 

43,  p.  067. 
United  States  v.  Gamble,  10  Mo.  457,  p.  534 
United  States  v.  Gardner,  1  Woods,  514;.. 

s.  c.,5  Chic.  Leg.  N.  30,  pp.  30,48,49,50. 
United  States  v.  Gee,  2  Cranch  C.  C.  163, 

p.  141. 
Uaited  States  v.  Glbert,  2  Sumn.   19,  pp. 

162,  411,  412,  502. 
United  States  v.  Gillies,  1  Pet.  C.  C.  159;: 

s.  c,  3  Wheeler,  O.  C.  308,  p.  532. 
United  States  v.  Hammond,  2   Woods, 

197,  pp.  603,008,017,654. 
United  States  v.   Hand,  3  Phila.  403,  p. 

142. 
United  States  v.  Hanwav,  2  Wall.   Jr., 

139,  pp.  190,  200,  214,  228,  2;J4. 
United  States  v.  Haskell,  4  Wash.  C.  C. 

412,  n.  p.  153. 
United  States  v.  Helriggle,  3  Cranch  G. 

C.  179,  p.  722. 
United  States  v.  Hill,  1  Brock.  156,  pp. 

0,53,  058,  070, 
United  States  v.  Horn,  5  Blatch.  105,  p. 

494. 
United  States  v.  Hollinsberry,  3  Crancb^ 

C.  C.  645,  p.  722. 


1 


TABLE  OF  CASES  CITED. 


Uiiiteil  States  v.  liisiirifunts,  2  Dull.  335, 

pp. 50,  75. 
ITnitoil  .Stiites  v.  Jtiinudson,  1  Cranch  0. 

V.  (;•>,  J).  72i. 
United  States  v.  .Johns,  4  Dall.  »12  ;   «.  c, 

1  Wnsh.  V.  V.  3ir.,  pp.  141,  14J,  l.W. 
United  Stales  v.  Johnson,  1  Crunch  C. 

C.  ;i71,  p.  •J.'il. 
United  States  v.  Kelly,  4  Wush.  O.  C.528, 

p.  152. 
United  States  v.  Krousc,  2  Crunch  C.  0. 

252,  p.  142. 
Uniteil  States  v.  Lambert,  2  Cranch  C. 

C.  1:57,  p.  130. 
United  States  v.  Lawrence,  4  Cranch  O. 

C.  514,  p.  700. 
United  Slates  v.  Lloyd,  4  Cranah  C.  0. 

4«7,  pp.  71'.>,  721. 
United  States  v.  Lonjiherj,  13  Blatch. 

2t>7,  pp.  W,  91,  104,  284. 
United  States  v.  Marchant,4  Mason,  158; 

s.  c,  12  Wiieat.  4.SO,  pp.  76, 147,  148,  149, 

151,  1.53,  28(;. 
United  States  v.  McIIenry,  C  Blatch.  503, 

pp.  210,  251. 
United  States  v.  McKee,3Cent.  L.  J.  258, 

pp.  414,  415,  497. 
United  States  v.  McLaughlin,  1  Cranch 

C.  C.  444,  p.  141. 
United  States  v.  McMahon,  4  Cranch  C. 

C.  573,  pp.  19,  20r,. 
United  States  v.  McPherson,  1  Cranch 

C.  C.  517,  p.  142. 
United  .States  v.  Morris,  1  Curt.  C.  C. 

23,  p.  301. 
United  States  v.  Mundol,6  CaL  245;  s.  c, 

1  Hutches,  415,  pp.  718,  719. 
United  States  v.  Koelke,  w   Blatch.  554; 

».  c,  1  Fed.  Hep.  420;  9  Reporter,  605, 

pp.  200,  202. 
United  States  v.  Palmer,  2  Cranch  C.  C. 

11,  pp.  017,  08'J. 
United  Slates  v.  Peter,  2  Crunch  C.   C. 

'.IH,  p.  111. 

United  States  v.  Pluramer,  3  Cliff.  28,  p. 

708. 
United  States  v.  Porter,  2  Dall.  345,  pp. 

310,  740. 
United  States  v.  Randall,  1  Deady,  524, 

p.  142. 
United  States  v.  Randall,  2  Cranch  C.  C. 

412,  p.  300. 
United  States  v.  Rawlins,  1  Cranch  C.  C. 

8:5,  p.  720. 
United  States  v.  Reed,  2  Bhitfh.  4:?5,  pp. 

07,  1.50,  572,  590.   59ri,  017,   682,   G83,  680, 

092,  695,  739,  744,  745,  740. 
United  States  v.  Reeves,  3  Woods,  201, 

lip.  008,  635,  636. 
United  States  v.  Reid  12  How.    (U.  S.) 

301  ;  s.  c,  3  HuKhes,.509,  p.  415. 
United  States  v.  Reynolds,  1  Utah,  319, 

p.  220. 
United  States  v.  Rose,  6  Fed.  Rep.  136, 

p.  94. 
United  States  v.  Sandlord,  1  Cranch  C. 

C.323,  pp.  718,  721,722. 
United  States  v.   Shackleford,  18  How. 

38S;  pp.  141,148,  150,722. 
United  States  v.  Sharp,  1  Peters  C.  C. 

118,  151. 
United  States  v.  Shive,  Baldwin,  510,  p. 

142. 
United  States  v.  Singleton,  1  Cranch  C. 

C.  237. p.  722. 
United  States  v.  Smith,  1  Sawyer,  277, 

pp.  .303,  343. 
United  States  v.  Smithers,  2  Cranch  C. 

C.  38,  p.  142. 
United  States  v.  Summers,  4  Cranch  C. 

C.  334,  p.  142. 
United  States  v.  Tallman,  10  Blatch.  21, 

pp.  49,  1.56,  496. 
United  States  v.  Toms,  1  Cranch  C.  C. 

607, p.  142. 


United  States  v.  Tompkins,  2  Crancli  0. 

C.  46,  p.  070. 
United  States  v.  Upham,  2  Mont.  170,  p. 

343. 
United  States  v.  Ware,  2  Cranch  C.  C. 

477,  p.  207. 
United  States  v.  Watkins,3  Crunch  C.  C. 

578,  pj).  80,  1D5,  213,  270,  279. 
United  States  v.  Watkins,  3  Cranch  C.  C. 

443,  i)p.  249,  2.52,  282, 283. 
United  States  v.  White,  2  Wash.  C.  C.29, 

p.  690. 
United  States  v  White,  5  Cranch  C.  C. 

73,  p.  142. 
United  States  v.  White,  5  Cranch  C.  O. 

457,  pp.  .5.89,  007,  638. 
United  States  v.   Williams,  1  Dill.  485, 

PI).  572,  589,  .590,  008,  046. 
United  States    v.   \Vilsoii,  Baldwin,  78, 

pp.  147,  152,  194,  208,  214,  228,  236,  330. 
United  States  v.  Wilson,  6  McLean,  604, 

pp.  30,  48,  49. 
United  States  v.  Wood,  2  Cranch  C.  C. 

104,  p.  142. 

United  States  v.  Woodruff,  4  McLean, 

105,  pp.  49,  51. 

Urquhart  v.  Powell,  59  Ga.  721,  p.  338. 

V. 

Vaden  v.  Ellis,  18  Ark.  3.55,  p.  318. 
Vanauken  v.  Beemer,  4  N.  J.  L.  364.  p. 

110. 
Van  Blaricum  V.  State,  16  111.  364,  pp.  275, 

299. 
Van  Buskirk  v.  Daugherty,  44  Iowa,  42, 

p.  458. 
Vance  v.  Com.,  2  Va.  Cas.  162,  p.  11.5. 
Vance  v.  Ilaslett,  9  Bibb,  191,   pp.  338, 

340. 
Vanderwerker  v.  People,  5  Wend.  530, 

p.  79. 
Van  Doren  v.  Walker,  2  Caines,  373,  p. 

379. 
Vanhook  v.  State,  12  Tex.  252,  pp.  603, 

035. 
Van  Hook,  E.V  parte,  3   X.  Y.  City  Hall 

Rec.  64,  p.  053. 
Vanmetcr  v.  Kitzmiller,  5  W.  Va.  381,  p. 

418. 
Vannoy  v.  Givens,  23  N.  .J.  L.  201,  p.  181. 
Van  Vacter  v.  McKillip,  7  Blackf.  578,  p. 

210. 
Van  Vechten  v.  Hopkins,  2  Johns.  373, 

p.  17. 
Van  Wyckv.  Mcintosh,  14  N.  Y.  439,  p.. 

474. 
Vasie  v.  Delaval,  1  T.  R.  11,  pp.  509,  513, 

543. 
Vater  v.  Lewis,  36  Ind.  288,  p.  390. 
Vattier  v.  State,  4  Blackf.  73,  pp.  589,  603, 

615. 
Vaughn  V.  Dotson,2  Swan,  348,  pp.  406, 

450,  458,  525. 
Vaughn  V.  Scade,30  Mo.  600,  p.  10. 
Vaughn  v.  State,  4  AIo.  530,  pp.  729,  730, 

733. 
Veal  V.  Brown, 2  N.  J.  L.  72,  p.  70. 
Veatch  V.  State,  56  Ind.  584,  pp.  619,  645. 
Vennum  v.  Ilarwood,  6  111.  059,  pi).  341, 

342. 
Verinilvca,  Ex  parte,  0  Cow.  555,  pp.  211, 

225,'229,  2.8,  25',  207. 
Vernon  v.  Manners,  i  Dj'er,  319  a.  pi.  (13), 

p.  110. 
Vest  V.  Cooper,  68  X.  C.  131,  p.  530. 
Vczain  v.  People,  40  III.  397,  pp.  314,  722. 
Vicars  v.  Langham,   Hob.  235,  pp.  267, 

282,  315. 
Vicarv  v.   Farthing,  M.  1695,  Cro.  Eliz. 

411,  pp.  408,409,  49.J. 
Vidal  V.  Tliomp.son,  11  Mart.  23,  p.  323. 
Vinton  v.  Peck,  14  Mich.  287,  p.  474. 
Virginia  v.  Rives,  100  U.  S.  313,  pp.  27,  29. 
Virginia,  Sx  parte,  100  U.  S.  339,  p.  28. 


TABLE  OF  CASES  CITED. 


li 


Voris  V.  Smith,  13  Serg.  &  R.  334,  p.  476. 
Vy-vj'an  v.  V'yvyan,  30  Beav.  65,  p.  344. 

W. 

Wade  V.  State,  12  Gu.  25,  p.  338. 
Wad-lell  V.  Magee,  53  Miss.  687,  p.  327. 
Waddell's  Pase,  8  Jur.  (X.  S.)  Pr.  II,  181; 

s.  c,  Allen  Tel.  Cas.  496,  u.,  p.  675. 
"Wadlin's  Ca.se,  11  Mass.  142,  pp.  644,  656. 
Waggett  V.  Sliaw,  3  Camp.  315,  p.  15. 
Wait  V.  Maxwell,  5  Pick.  217,  p.  527. 
Wakefield  v.  State,  41  Tex.  556,  pp.  353, 

365,  520. 
Wakeinan  v.  Sprague,  7  Cow.  720,  p.  125. 
Walker  v.  Boston  etc.  11.  Co.,  3  Cash.  1, 

p.  323. 
Walker  v.  Collier,  ,37  111.  362,  pp.  291,  319. 
Walker  v.  Green,  3  Me.  215,  pp.  340,341. 
Walker  v.  Hunter,  17  Ga.  364,    pp.  452, 

453,  455,  485,  525. 
Walker  v.  Kennison,  34  X.  II.  257,  pp.  2S8, 

297,  340. 
Walker  v.  State,  49  Ala.  369,  p.  .^28. 
Walker  v.  State,  37  Tex.  366,  p.  413. 
Walker  v.  State,  6  Tex.  App.  576,  pp.  98, 

09. 
Walker  v.  AValker,  11  Ga.  206,  pp.  406, 

452,  453,  525. 
Wall  V.  State,  23  Ind.  150,  pp.  708,  736. 
Wallace  v.  Columbia,  48  Me.  436,  pp.  90, 

346. 
Wallace  v.  State,  2  Lea,  29,  p.  619. 
Waller  v.  State,  40  Ala.  325,  pp.  208,  209, 

277,  300. 
Walsh  V.  Sun  Mutual  Ins.  Co.,  2  Robt. 

646,  p.  16. 
Walston  V.  Com.,  10  B.  Mon.  15,  p.  157. 
Walter  v.  Junkins,  6  S.  4  R.  415,  p.  391. 
Walter  V.  People,  32  X.  Y.  147;   s.  c,  6 

Park.  Cr.  R.  15;  18  Abb.  I'r.  147,  pp. 

157,  205,  208. 
Walton  V.  Augusta  Canal  Co.,  54  Ga.  245, 

p.  338. 
Waltz  V.   Robertson,  7  Blackf.  499,  pp. 

471,  484.  487. 
Wankonchawneekkavv  v.  United  States 

Morris,  332,  pp.  231,  714. 
Ward  V.  State,  8  Blackf.  101,  p.  542. 
AVard  v.  State,  48  Ind.  289,  pp.  608,  622. 
Ward  V.  People,  30  Mich.  116,  p.  10. 
Ward  V.  State,  2  Mo.  120,  pp.  671,  699. 
Ward  V.  State,  1  Humph.  254,  pp.  2 53, 

30!. 
Warden  v.  Warden,  22  Vt.  563,  pp.  480, 

501,502. 
Ware  v.  Ware,  8  Me.  42,  pp.  275,  283. 
Wareham  v.  State,  25  Ohio  St.  601,  p.  328. 
Warnel-  v.  X.  \.  etc.  R.  Co..  52  X.  Y.  437, 

p.  393. 
Warner  v.  Robinson,  1  Root,  194,  pp.  509, 

517,  518. 
Warren  v.  Com.,  37  Pa.  St.  45,  pp.  21,  148, 

157. 
Warr«-n  v.  State,  1  G.  Greene,  106,  p.  S28. 
Warren  v.  State,  9  Tex.  xVpp.  619,  pp.  366, 

510. 
Wash  V.  Com.,  16  Gratt.  530,  p.  71. 
Washburn  v.  People,  10  Mich.  372,  p.  664. 
Washington  v.  State,  60  Ala.  10,  p.  32S. 
Washington  v.  State,  8  Tex.  App.  377,  p. 

102. 
Wassels  v.  State,  26  Ind.  30,  p.  709. 
Wasson  v.  State,  3  Tex.  App.  474,  pp.  289, 

295. 
Wassum  V.  Feeney,  121  Mass.  93,  pp.  339, 

346. 
Waterford  etc.  Tp.  Co.  v.  People,  9  Barb. 

161,  p.  148. 
Waters  v.  State,  51  Md.  430;  s.  c,  8  Re- 
porter, 560,  pp.  216,  229. 
Watertown  Bank  v.  MLs,  51  X.  Y.  558,  pp. 

420,421,427,428. 
Watkius  V.  State,  60  Ga.  601,  p.  301. 


VVatkins  v.  Weaver,  10  Johns.  107,  pp. 

111,303. 
Watson  V.  Walker,  23  N.  H.  473,  pp.  474, 

499. 
Watson  V.  Walker,  33  N.  H.  131,  p.  288. 
Watson  V.  Whitney,  23  Cal.  375,  p.  255. 
Watson  V.  State,  6.3  Ind.  548,  pp.  275,  299. 
Watson  V.  Tripp,  11  R.  I.  98;  s.  c,  15  Am. 

L.  Reg.  282,  p.  185. 
Watts  V.  Ruth,  30  Ohio  St.  32,  pp. 3.39,  342. 
Watts  V.  Territory,  1  Wash.  T.  (X.  S.) 

409,  pp.  581,  742. 
Way  V.  Arnold,  18  Ga.  181,  p.  484. 
Way  V.  Butterworth,  106  Mass.  75,  p.  745. 
Weaver  v.  Devendorf,  3  Den.  117,  p.  749. 
Webb  V.  State,  29  Ohio  St.  351,  p.  126. 
Webb  V.  State,  5  Tex.  App.  596,  p.  458. 
Webber  v.  Merrill,  34  X.  H.  202,  p.  394. 
Webster's  Case,  5  Me.  32,  pp.  702,  713. 
Wedderburn's  Case,  Post.  Cr.  L.  23,  p. 

302. 
Weeks  v.  Medler,  20  Kan.  57,  p.  195. 
\Veeks  v.  State,  31  Miss.  490,  pp.  627,  628, 

629,  632. 
Weinzorpflin  v.  State,  7  Blackf.  186,  pp. 

729,  731. 
Weill  V.  Lucerne  M.  Co.,  11  Xev.  200,  p. 

233. 
Weiss  V.  State,  22  Ohio  St.  486,  p.  365. 
Welch  V.  Welch,  9  Rich.  L.  133,  p.  388. 
Wellborn  v.  Spears,  32  Miss.  139,  p.  317. 
Wells  V.  Cooper,  30  L.  T.  X.  S.  721,  p.  335. 
Wells  V.  Stale,  11  Xeb.  409.  p.  542. 
Wenrick  v.  Hall,  11  Serg.  &  R.  153,  p.  292. 
Wentworth  v.  Farniington,  51  X.  H.  128, 

p.  323. 
Wesley  v.  State,  61  Ala.  282,  p.  71. 
Wesley  v.  State,  11  Humph.  502,  p.  394. 
West  V.  State,  7  Tex.  App.  150,  p.  289. 
West  V.  State,  8  Tex.  App.  119,  p.  2;;0. 
W^estmorland  v.  State,  45  Ga.  225,  pp, 

370,  3s0,  407,  458,  538. 
Wharton's  Case,  Yelverton,  24,  p.  282. 
Whelan  v.  Reg.,  28  Up.  Can.  (t^.  B.)  2,  pp. 

285,  308,  309,  U8. 
Wheeler  v.  State,  42  Ga.  30S,  p.  60. 
White  V.  Bisbing,  1  Yeates,  400,  p.  477. 
White  V.  Com.,  6  Binn.  179,  pp.  3,  69,  628. 
White  v.  Com.,  29  Gratt.  824,  pp.  714,  725. 
White  V.  Martin.  3  111.  69.  p.  391. 
WMiite  V.  Moses,  11  Cal.  68,  p.  223, 
White  v.  State,  52  Miss.  216,  pp.  24,  208, 

219,  275.  277. 
White  V.  State,  13  Ohio  St.  569,  p.  718. 
White  V.  State,  16  Tex.  206,  pp.  69,  208. 
White  V.  W'hite,  5  Ravvle,  61,  p.  540. 
WMiitehead  v.  (Jom.,  19  Gratt  640,  p.  734. 
WHiitehead  v.  Keys,  3  Allen,  495,  p.  478. 
Whitehead  v.  Sta"te,  29  Ark.  99,  p.  339. 
Whitehead  v.  State,  10  Ohio  St.  449,  p. 

13. 
Whitehead  v.  Wells,  29  Ark.  99,  p.  22. 
Whitehurst  v.  Davis,  2  Hay.  (X.  C.)  113, 

p.  5. 
Whitlevv.  State,  .38  Ga.  50,  p.  279. 
Whitner  v.  Hamlin,  12  Fla.  18,  pp.  195, 

343. 
Whitney  v.  State,  8  Mo.  165,  pp.  354,  363. 
Whitney  y.  Whitman,  5  Mass.  405,  pp. 

485,  498. 
Wickersham  y.  People,  2  III.  128,  pp.  339, 

343. 
Widder  y.  Buffalo  etc.  R.  Co.,  24  Up. 

Can.  (t^.  B.)  534,  p.  305. 
Wiggin  V.  Plumer,  31  X.  H.  251,  p.  343. 
Wiggins  y.  State,  1  Lea,  (Tenn.)  738,  p. 

153. 
Wilburn  v.  State,  21  Ark.  198.  pp.  603, 

608. 
Wilcox  y.  School  District,  26  X.   H.  303, 

pp.  71,  323. 
Wilder  v.  State,  25  Ohio  St.  555,  pp.  340, 

342. 
WMlds  y.  Bogan,  57  Ind.  463,  pp.  488,  49G  • 


lii 


TABLE  OF  CASES  CITED. 


Wiley  V.  Keokuk.  C.  Kiin.  95,  pp.  308,  300. 
W'ili'V  V.  State,  1  Swan,  -IM.  p.  .i\>i. 
"WilhVhn  v.  People.  7-J  111.  4(18,  pi).  .Ml,  ]20. 
Willev  V.  Hellast.  ill  Me.  ."ir.O,  pp.  ."ill,  51.'). 
WilleV  V.  State.  4t)  Iiul.  ;{li;!,  i)i>.  705,  7'2y. 
■Willev  V.  State,  .VJ  liul.  2tG,  p.  582. 
Willi.iius  V.  Com.,'Jl  Tu.  St.  493,  pp.  78, 

88. 
Williams  v.  Gfeat  W.  U.  Co.,  8  Hurl.  *  N. 

8C.it;  s.  c.,-.'S  L.  J.  (lixch.)  '->,  pp.  339, 

343. 
Will  anis  v.  Godfrev.  1  lleisk.  '.'99,  p.  260. 
WlUiiiiiis  V.  Miller,  10  Iowa.  344,  p.  3--'0. 
Williams  v.  Norris.  -J  Litt.  157,  i).  3IS. 
Williauis  V.  l*oppleton,  3  Orey.   139,  p. 

303. 
Williams  v.  Smith,  G  Cow.  106,  p.  187. 
Williams  v.  State,  <il  Ala.  3.3,  p.  574. 
Williams  v.  State.  3  Ga.  453,  pp.  190,  200, 

208,  '2t!4,  291.  292,  290. 
Williams  v.  State.  .'..=>  Ga.  391,  pp.  623,  735. 
Williams  v.  State,  60  Ga.  367,  p.  256. 
Williauis  V.  State,  45  Ind.  299,  pp.  193, 

352,  368. 
Williams  v.  State,  32  Miss.  380,  pp.  208, 

299,  301. 
Williams  v.  State,  37  Miss.  407,  p.  339. 
AVilliams  v.  State,  9  Mo.  270,  p.  721. 
Williams  v.  Stale,  12  Ohio  St.  622,  p.  7. 
Williams  v.  State,  3  lleisk.  376,  p.  730. 
Williams  v.  State,  ,30  Tex.  404,  p.  729. 
AVilliams  v.  State,  44  Tex.  34,  pp.  27,  109, 

I7(!,  265. 
Williamson  v.  Ileddish,  45  Iowa,  550,  pp. 

4.")S,  464. 
Williamson  v.  State,  16  Ala.  431,  p.  721. 
Willint^  V.  Swazev,  1  Browne   (Pa.),  123, 

pp.  389,  408,  540. 
Willis  V.  State,  9  Tex.  App.  297,  p.  196. 
Willis  V.  State,  69  Ind.  286,  pp.  174,  634. 
Willis  V.  State,  12   Ga.   444,   pp.  199,  200, 

20.5. 
Willis  V.  State,  2  Head,  157,  p.  736. 
Wilson  V.  Ahrahams,  1  Hill  (N.  Y.),  207, 

pp.  451,458,459. 
Wilson  V.  Berryman,  5  Cal.  44,  pp.  510, 

514,  515. 
Wilson  V.  Butler,  2  Moo.  &  llob.  78,  p.  14. 
Wilson  V.  I'eople,  94  111.  299,  pp.  247,  308. 
Wilson  V.  l'eo])le,  4  Park.  Cr.  K.  61,  pp. 

431,  493. 
Wilson  V.  State,  31  Ala.  371,  p.  297. 
Wilson  V.  State,  94  111.  299,  p.  228. 
Wilson  V.  State,  1  Blackf.  428.  p.  584. 
Wilson  V.  State,  6  Baxt.  (Tenn.;,  206,  p. 

453. 
Wilson  V.  State. 3  Tex.  App.  63,  p.  200. 
Wilson  V.  State,  .32  Tex.  112,  p.  5S.\ 
Wilson  V.  State,  35  Tex.  365,  p.  22. 
Wilson  V.  State  Bank,  3  La.  An.  196,  p. 

127. 
Windham  v.  Williams,  27  Miss.  313,  p. 

329. 
Winnesheik  Ins.  Co.  v.  Schueller,  60  111. 

473,  pp.  199,  102.  269. 
Winsett  v.  State,  57  Ind.  26,  p.  79. 
Winslow  V.  Campbell,  46  Vt.  746,  pp.  481, 

485. 
Winslow  V.  Draper,  8  Piek.  170,  p.  391. 
Winslow  V.  Morrill,  68  Me.  362,  p.  .520. 
Wirebach   v.    First  Nat.    Bank,  12  Re- 
porter, 571. 
Wischover  v.  German    Mut.  Fire    Ins. 

Co.,  71  111.  65,  p.  2.53. 
Wise  V.  Bosley,  32  Iowa,  34,  pp.  433,  442, 

443. 
Withers  V.  Buckley,  20  How.  84.  p.  661. 
Withers  V.  Fiseus,  40  Ind.  131,  p.  .542. 
Wlthipole's  Case,  Cro.Car.  134,  p.  618. 
Wolfe  V.  Martin  1  How.  (Miss.)  30,  pp.  5, 
327. 


Wood  V.  State,  34  Ark.  341,  i)p.  3S],  45S. 
Wood  V.  Stewart,  7  Vt.  149,  p.  480. 
Wood  V.  Stoddard, 2  Johns.  194.  ^^.  ia5. 
Wood  V.  Thomjison,  1  Car.  &  M.  9S,  j).  82. 
Wood  V.  Thompson,  1  Cai.  &  M.  171,  pp. 

5,  82. 
Wood  V.  Wood,  .52  N.  11.422,  p.  181. 
Woodartl  v.  State, 9  Tex.  App.412,p.  300. 
Woodbridge  v.  Baymond,  Kirby,  279,  pp. 

189,338. 
Woodruff  V.  Uiehardson,  20  Conn.  238, 

l)p.  303.  .528. 
Wot)d8  V.  Uowan,  5  Johns.  133,  p.  111. 
Woods  V.  State,  43  Mt.ss.  364,  pp.  369,  380, 

537. 
Woodsidcs  V.  State,  2  How.   (Miss.)  655, 

P)).  102,116,731,733. 
Woodward  v.  Dean,  113  Mass.  297,  p.  340. 
Woodward  v.  Leavitt,  107  Mass.  453,  p. 

346. 
Woolsev  V.  White,  7  Bradw.  277,  p.  417. 
Worford  v.  Isbell,  1  Bibb,  247,  p.  .027. 
Work  V.  State,  2  Ohio  St.  296,  pp.  6.  10. 
Wormeley's  Case,  10  Gratt.  658,  pp.  223, 

300. 
iVortham  v.  Com.,  5  Rand.  669,  pp.  718, 

719.720,  721. 
Wrav  V.  Thorn,  Wnies,  488,  pp.  330,  331. 
Wright  V.  Burchfield,  3  Ohio,  54,  p.  3.55. 
Wriglit  V.  Columbian  Ins.  Co.,  2  Johns. 

211,  p.  16. 
Wright  V.  Clark,  50  Vt.  130.  p.  494. 
Wright  V.  Com.,  32  Gratt.  941,  pp.  209,  218, 

223. 
Wright  V.  Illinois,  etc.  Tel.  Co.,  20  Iowa, 

195,  pp.  510,  518,  .540,  555. 
Wright  V.  Rogers,  Pen.  (N.  J.)  546,  pp. 

487,  495. 
Wright  V.  State,  18  Ga.  383,  p.  222. 
Wright  V.  State,  4  Himiph.  194.  p.  216. 
Wright  V.  Stuart,  5  Blackf.  120,  p.  79. 
Wroeklege  v.  State,  1  Iowa,  167,  pp.  328, 

705,  734. 
W^yatt  V.  Noble,  8  Blackf.  .507,  p.  296. 
Wyatt  V.  State,  1  Blackf.  257,  p.  3.52. 
Wynehamer  v.  People,  13  N.  Y.  378,  p.  6. 
WS'Sor  V.  Com.,  6  Gratt.  711,  p.  634. 


Yancv  V.  Dow-ner,  5  Littcll,  8,  p.  444. 
Yaney  v.  State,  63  Ala.  141,  p.  578. 
Yaner  v.  People,  34  Mich.  286,  p.  664. 
Yanez  v.  State,  6  Tex.  App.  429.  pp.  179, 

339,341,342. 
Yates  V.  People,  38  HI.  .527,  pp.  519,730, 

732. 
Yelin  Jim  v.  Territory,  1  Wash.  Ter.  76, 

pp.  91,  620. 
Young  V.  Marine  Ins.  Co.,1  Cranch  C.  C. 

452,  ])p.  182,  226. 
Young  V.  Slaughterford,  11  Mod.  228,  p. 

169. 
Young  V.  State,  2  How.   (Miss.)  865,  p. 

.584. 
Young  V.  State,  6  Ohio  St.  435,  pp.730, 

731. 
Young  V.  State,  23  Ohio  St.  577,  pp.  276, 

730. 


Zaehery  v.  State,  7  Baxt.  1,  p.  647. 
Zeely  v.  Yansen,  2  Johns.  386.  p.  87. 
Zickefoose  v.  Kuykendall,  12  W.  V^a.  3»^ 

pp.  338,343. 
Zuber  v.  Geigar,  2  Yentes,  522,  p.  510. 


.  PART  I. 

OF  TRIAL  JURIES. 


•     TITLE  L 

OF  THE  ORGANIZATION  OF  TRIAL  JURIES. 


CHAPTER   I. 

OF  THE  CONSTITUTION  AND  KINDS  OF  TRIAL    JURIES. 

Article  I. — The  Ventje. 

SECTION. 

1.  Earl  J'  History  —  Jury  of   the  Vicinage  —  Cliallenge  for  Want  of 

Huiidredors. 

2.  Constitutional  Provisions. 

3.  The  Modern  Jury  of  the  Vicinage. 

Article  II. — The  Petit  Jury. 

4.  Scope  of  the  Discussion. 

5.  Must  consist  of  Twelve  Men. 

G.  And  this  must  appear  by  the  Record. 

7.  And  cannot  be  waived  in  Cases  of  Felony. 

S.  Otherwise  in  Civil  Cases. 

9.  How  in  Cases  of  Misdemeanor. 

10.  Power  of  Legislature  to  authorize  a  Jury  of  less  than  Twelve. 

11.  What  if  more  than  Twelve  are  impanelled. 

Article  HI. — The  Special  Jury. 

12.  Origin  of. 

13.  Under  the  Englisli  Practice. 

(1) 


2  CONSTITUTION  AND  KINDS  OB^  TRIAL  JIIJIES.       [CH.    I. 

(1.)  When  and  how  sinnnionc'd. 

(2.)  The  Jury  struck  must  try  the  lisue  —  Abuses  under  this 

KuU'. 
(3.)  Di.'fiiult  of  Special  Jurors. 
(4.)  Costs  of. 
14.     Under    American    Statutes. 

(1.)    Under  what  Circumstaaces  granted. 
(2.)  How  struck. 

(3.)  Jurors  having  special  Qualifications. 
(4.)  Costs  of. 

Article  IV. —  The  Jury  de  medietate  Linguae. 

16.  Origin  and  History  of. 

17.  Generally  abolished  by  Statute. 


Article  I. —  The  Venue. 


§  1.    Early  History  —  Jury  of  the  Vicinage  —  Challenge  for  Want  of 

Hundredors. 
§  2.    Constitutional  Provisions. 
§  3.    The  Modern  Jury  of  the  Vicinage. 

§  1 .  Early  Histoi*y  —  Jury  of  the  Vicinage  —  Clial- 
leiige  for  Want  of  Hundredors. —  In  the  early  history 
of  the  common  law  it  was  regarded  as  highly  essen- 
tial that  the  jury  should  be  taken  from  the  immediate 
locality  where  the  cause  of  action  or  offense  occurred.  To 
use  the  expression  of  the  common  law,  the  jury  must  be  of 
the  vi.'oie  or  neighliorhood,  it  l)cing  supposed  that  the 
neighl)ors,  by  reason  of  their  superior  knowledge  of  the 
matter  in  controversy,  were  better  qualified  to  do  justice  in 
the  premises  than  strangers.^  Out  of  this  circumstance 
grew  the  right  of  challenge  for  want  of  hundredors,  z.  e., 
because  a  certain  numl)er  of  the  jurors  were  not  of  the 
hundred  wherein  the  cause  of  action  arose  or  the  offense 
was  committed.^  This  right  of  cliallenge  existed  until  a 
comparatively  recent  date,  but  gradually  fell  into  disuse, 

J  2  Beeves'  Hist,  of  Eng.  Law,  3,  271. 
2  1  Chit.  C.  L.  177,  501. 


§  2.]  CONSTITUTIONAL  PROVISIONS.  3 

and  was  finally  abolished  by  the  English  consolidated  jury 
act,^  which  at  the  same  time  enacted  that  the  jurors  should 
be  taken  from  the  body  of  the  county. 

Upon  the  abolition  of  the  function  of  jurors  as  witnesses, 
the  contrary  view  naturally  gained  ground.     What  is  now - 
sought  is  that  the  juror  may  approach  the  matter  in  con- 
troversy  with  a  mind  untrammelled   by  association  with    7 
parties  in  interest,  and  unbiased  by  preconceived  opinions  J 
as  to  the  course  justice  ought  to  take.      In  this  circum- 
stance is  found  an  argument  against  taking  jurors  from  the 
immediate    vicinity   where    a  controversy  has   arisen  or  a 
crime  has  been  committed.     Those  are  less  likely  to  be  im- 
partial jurors  who  come  from  the  immediate  neighborhood 
of  the  parties,  and  have  been  either  eye-witnesses  to  the 
facts,  or  have  had  their  minds    imbued  with  the  popular 
feeling  as  to  the  merits  of  the  controversy.^ 

So  completely  are  we  divorced  from  the  common  law 
view  as  to  the  necessity  of  a  jury  of  the  visne,  that  it  is  re- 
garded as  erroneous  for  the  court  to  direct  the  sheriff  to 
summon  jurors  upon  a  special  venire  in  a  capital  case,  "  re- 
siding as  near  as  may  be  to  the  place  where  the  murder  was 
committed."  ^  A  late  statute  of  Virginia  requires  the 
summoning  in  capital  cases  of  jurors  "  residing  remote 
from  the  place  Avhere  the  offense  is  charged  to  have  been 
committed."  * 

§  2.  Constitutional  Provisions.  —  The  Constitution  of 
the  United  States  provides  that  "  in  all  criminal  prose- 
cutions the  accused  shall  enjoy  the  right  to  a  speedy  and 
public  trial  by  an  impartial  jury  of  "the  State  and  district 
wherein  the  crime  shall  have  been  committed."  ^     A  sim- 

1  6  Geo.  IV,  c.  50,  §  13. 

-  Schmidt  v.  ISTew  York,  etc.  Ins.  Co.,  1  Gray,  529. 

3  Shaffer  v.  State,  1  How.  (Miss.)  238.  See  also  Hartshorne  v.  Patton, 
2  Dall.  252;  White  v.  Com.,  6  Binn.  179. 

^Poindexter  v.  Com.,  33  Gratt.  766;  Bacigahipo  v.  Com.,  33  Gratt. 
807,  construing  Acts  of  Assembly  1877-78,  p.  310,  §  4. 

^  Const.  U.  S.,  Amend.  Art.  VI.  This  provision  applies  to  civil  as  w  ell 
as  criminal  cases.  Com.  v.  Flanagan,  7  Watts  &  S.  415,  422,  per 
Rogers,  J. 


4  COXSTITUTIOX  AND  KINDS  OF  TRIAL  .TL'KIES.       [CH.   I. 

ihir  pl•()^•isi()n  is  fouiul  in  the  constitution  of  each  State. 
The  liL^ht  thus  nuaninteed  lius,  from  the  earliest  times, 
l)een  leuaided  as  "  one  of  the  irreatest  securities  of  life, 
liberty  and  property  of  the  citizen"^  Some  of  the  early 
constitutions,  and  indeed  a  few  which  are  in  force  at  the 
present  time,  simply  declare  the  common  law  in  this  respect, 
namehs  that  the  accused  shall  ])e  entitled  to  a  jury  "  of  the 
vicinage  ;  ''  ^  hut  usually  provision  is  made  for  "  an  impar- 
tial jury  of  the  county  or  district  in  which  the  crime  shall 
have  been  committed."  ^ 

§  3.  The  Modern  Jury  <»f  the  Vicinage. — In  some 
States,  if  competent  jurors  cannot  be  conveniently  found  in 
the  county  in  which  the  trial  is  to  be  had,  they  may  be 
summoned  from  any  other  county  by  order  of  the  court.* 
But  the  legislature,  unless  expressly  authorized  by  the 
organic  law,  has  no  power  to  direct  the  summoning  of  a 
jury  otherwise  than  from  the  vicinage.  This  is  a  substan- 
tial and  beneficial  incident,  essential  to  the  enjoyment  of  the 
right  of  trial  by  jury.^ 

1  Const.  Mass.  1780,  Part  I,  Art.  13;  Const.  Md.  1776,  Part  I,  § 
XXVIII;  Const.  N.  II.  1792,  Part  I,  Art.  17. 

2  Const.  Mich.  1835,  Art.  I,  §  10;  Const.  Ky.  1850,  Art.  XIII,  §  12; 
Const.  Me.  1820,  Art.  I,  §  6;  Const.  Va.  1870,  Art.  I,  §  10;  Const.  Penn. 
1873,  Art.  I,  §  9. 

3  Const.  Ark.  1874,  Art.  IL  §  10;  Const.  Ala.  1875.  Art.  I,  §  7;  Const- 
Colo.  187G,  Art.  II,  §  16;  Const.  Ga.  1868,  Art.  V,  §  12;  Const.  Fla.1865, 
Art.  I,  §  10;  Const.  111.  1870.  Art.  II,  §  9:  Const.  Ind.  1816,  Art.  I,  §  13; 
Const.  Kan.  1859,  Bill  of  RI<?hts.  §  10;  Const.  Miss.  1868,  Art.  I,  §  7; 
Const.  Minn.  1857,  Art.  I,  §  0;  Const.  Mo.  1875,  Art.  II,  §  22;  Const. 
Neb.  1875,  Art.  I,  §  11;  Const.  Oreg.  1857,  Art.  I,  §  11;  Const.  Ohio. 
1802,  Art.  VIII,  §  11;  Const.  Tenn.  1870,  Art.  I,  §  9;  Const.  Wis.  1848, 
Art.  I.  §  7. 

••  Craft  V.  Com..  24  Gratt.  602.  When  the  jurors  are  so  summoned, 
it  is  no  ground  of  challenge  to  the  array,  that  one  of  the  jurors  is  not  a 
resident  of  the  locality  from  which  the  jury  were  directed  to  be  taken. 
The  objection  in  such  a  case  may  be  taken  to  the  individual  juror. 
Craft  V.  Com.,  24  Graft.  603;  Hall  v.  State,  40  Ala.  698;  Fields  v.  State» 
52  Ala.  348. 

5  Swar;  v.  Kimball  (Sup.  Ct.  Mich.  1880),  11  Cent.  L.  J.  71.  The  leg- 
islature may,  however,  direct  the  summoning  of  a  jury  fiom  a  particular 
portion  of  the  vicinage.  Gardiner  v.  People,  6  Park.  Cr.  R.  155.  A 
jury  for  a  municipal  court  Kiay  properly  be  chosen  from  the  munici- 


§   5.]  MUST  CONSIST  OF  TWELVE  MEN.  5 

Article  II. — The  Petit  Jury. 

SECTION. 

4.  Scope  of  the  Discussion. 

5.  Mnst  consist  of  Twelve  men. 

6.  And  tliis  must  appear  by  the  Kecord. 

7.  And  cannot  be  waived  in  Cases  of  Felony. 

8.  Otlierwise  in  Civil  Cases. 

9.  How  in  Cases  of  Misdemeanor. 

10.  Power  of  Lefjislature  to  autliorize  a  Jury  of  less  than  Twelve. 

11.  What  if  more  than  Twelve  are  impanelled. 

§  4.  Scope  of  the  Discussion.  —  Our  attention  in  the 
chapters  immediately  following  will  be  almost  exclusively 
devoted  to  the  mode  of  selection,  drawins;,  summonino;  and 
formation  of  the  petit  jury. 

§  5.  Must  consist  of  Twelve  men. —  As  to  the  constitu- 
tion of  this  jury,  it  is  clear  that  a  legal  petit  jury,  ac- 
cording to  the  common  I'lw,  consists  of  neither  more  nor 
less  ihan  twelve  men. ^  As  stated  in  an  old  work,^  "The 
law  is  so  precise  in  this  number  of  twelve,  that,  if  the  trial 
be  by  more  or  less,  it  is  a  mistrial."  ^  So  far  as  concerns 
criminal  trials,  there  is  no  doubt  that  this  is  true  at  the 

pality,  instead  of  the  bodj^  of  the  count}^  ''A  jury  of  the  city,"  said 
Campbell,  C.  J.,  -'is  more  cori-ectly  a  jury  of  the  vicinage,  than  one 
taken  from  the  body  of  the  county."  People  v.  Hurst,  41  Mich.  328. 
Under  the  English  practice,  it  seems  that  the  chancellor  has  power  to 
direct  issues  out  of  chancery  to  be  tried  by  jurors  taken  from  or  ex- 
cluding certain  limits.  Thus,  the  order  iu  one  case  was  "  that  the  said 
Issues  be  tried  by  a  special  jury  of  the  county  of  Gloucester,  to  be  nom- 
inated from  tlie  special  jurors  resident  iu  the  county,  and  not  less'  than 
twelve  miles  from  Gloucester."     Wood  v.  Thompson,  1  Car.  &  M.  171. 

1  2  Hale  P.  C.  161;  Bac.  Abr.  Juries,  A;  1  Chit.  Cr.  L.  505. 

2  Trials  Per  Pais  (1725),  79. 

3  But  in  an  action  of  assumpsit  the  verdict  of  a  jury  of  thirteen  was 
held  to  be  good.  Tillman  v.  Allies,  5  Smed.  &  M.  373.  Contra,  Wolfe 
V.  Martin,  1  How.  (Miss.)  30;  McCormick  v.  Brookfield,  4  X.  J.  L.  G9. 
72 ;  Whitehurst  v.  Davis,  2  Hay.  (X.  C.)  113 ;  Baron  Parke  iu  Muirhead 
v.  Evans,  G  Exch.  447,  449.  In  Kentucky,  an  objection  to  a  verdict  by  a 
jury  of  thirteen  is  good,  if  made  in  the  court  below  upon  a  motion  for  a 
new  trial.  It  cannot,  however,  be  raised  in  an  appellate  court  for  the 
first  time.  Ross  v.  Neal,  7  T.  B.  Mou.  408;  Berry  v.  Kenney,  5  B.  Mon. 
122.  Xo  legal  verdict  can  be  rendered  in  a  criminal  case  by  a  jury  of 
more  than  twelve  men.     Bullard  v.  State,  38  Tex.  504. 


6  CONSTITUTION  AND  KINDS  OF  TKIAL  JURIES.       [CII.    1. 

present  day.  AMicrevcr  a  jury  is  mentioned  in  our  or<>anic 
laws,  tiic  term  is  understood  to  have  reference  to  the  jury 
as  constituted  at  common  law,  unless  the  contrary  plainly 
appears.  Such  is  the  construction  uniformly  put  upon  that 
provision  common  in  the  constitutions  of  the  several 
States,  that  "  the  right  of  trial  by  jury  shall  remain  invio- 
late." ^ 

§  G.  And  this  must  appear  by  the  Record.  —  There- 
fore, where  the  record  shows  that  the  cause  was  tried  by  a 
jury  of  less  than  twelve  men,  the  trial  will  be  held  to  be  a 
nullity ;  the  judgment  will  be  reversed  and  the  cause  re- 
manded for  a  new  trial. '^ 

§  7.  And  cannot  he  waived  in  Cases  of  Felonj.  — 
There  would  seem   to  be  little  doubt  that  upon  the  trial 


1  Cancemi  v.  People,  18  N.  Y.  128,  135;  May  v.  Wilwaiikee,  etc.  R. 
Co.,  3  Wis.  219;  State  v.  Cox,  S  Ark.  436;  Work  v.  State,  2  Ohio  St.  296; 
Brazier  v.  State,  44  Ala.  387.  392;  Turns  v.  Com.,  6  Mete.  224,  235;  Lamb 
V.  Lane,  4  Ohio  St.  167;  People  v.  Kennedy,  2  Park.  Cr.  R.  312;  Byrd 
V.  State,  1  How.  (Miss.)  163,  177;  Carpenter  v.  State,  4  How.  (Miss.) 
163,166;  Redus  v.  AVofford,  4  Smed.  &  M.  579,  592;  State  v.  McClear. 
11  Nev.  39;  Smith  v.  Atlantic,  etc.  R.  Co.,  25  Ohio  St.  91,  102;  Gibson 
V.  State,  16  Fla.  291,  300;  Wynehamer  v.  People,  13  Jf.  Y.  378,  427; 
Crug-er  v.  Hudson,  etc.  R.  Co.,  12  N.  Y.  190,  198;  People  v.  Lane,  6 
Abb.  Pr.  (N.  S.)  105,  115. 

2  Cancemi  v.  People,  18  N.  Y.  128;  s.  c,  7  Abl).  Pr.  271;  Brown  v. 
State,  8  Blackf.  561;  Jackson  v.  State,  6  Blackf.  461;  Madnska  v. 
Thomas,  6  Kan.  153;  Brown  v.  State,  16  Ind.496;  Allen  v.  State,  54  Ind. 
461;  Hill  V.  People,  16  Mich.  351;  Com.  v.  Shaw,  7  Am.  Law  Reg.  289; 
Dixon  V.  Richards,  2  How.  (Miss.)  771;  Ayres  v.  Barr,  5  J.  J.  Marsli. 
286;  Oldham  v.  Hill,  5  J^  J.  Marsh.  300;  Bone  v.  McGinley,  7  How. 
(Miss.)  671 ;  Briant  v.  Russell,  2  X.  J.  L.  107;  Denman  v.  Baldwin,  3  X. 
J.  L.  945;  State  v.  Van  Matre,  49  Mo.  208;  State  v.  Meyers,  68  Mo.  266. 
However,  where  the  record  states  that  ''a  jury  of  twelve  good  and  lawful 
men  came,''  etc.,  but  contains  the  names  of  eleven  jurors  only,  an  api)el- 
late  court  will  presume  that  the  name  of  one  juror  was  omitted  by  mistake. 
Where]  the  record  is  contradictory,  the  legal  presumption  is  that  tliat 
portion  is  true  which  answers  the  requirements  of  the  law,  unless  the 
contrary  be  made  to  appear  bj*  exception.  Larillian  v.  Lane,  8  Ark. 
372.  In  Foote  v.  Lawrence,  1  Stew.  (Ala.)  483,  the  record  showed  the 
names  of  eleven  jurors  only,  but  as  it  elsewhere  stated  that  the  issue 
was  tried  by  ''a  jury  of  good  and  lawful  men."  the  court  presumed 
there  were  twelve  jurors,  the  parties  being  in  court,  and  no  objection 
being  made  at  the  trial. 


§   8.]  MUST  COXSIST  OF  TWELVE  MEN  7 

of  an  indictment  for  a  capital  crime  or  felony,  the  require- 
ment of  the  law  is  imperative,  that  the  jury  shall  consist  of 
twelve  persons.^  "The  law  in  its  wisdom  has  declared 
what  shall  be  a  leixal  jury  in  the  trial  of  criminal  cases  ; 
that  it  shall  be  composed  of  twelve  ;  and  a  defendant  when 
he  is  upon  trial  cannot  be  permitted  to  change  the  law,  and 
substitute  another  and  different  tribunal  to  pass  upon  his 
guilt  or  innocence.  The  law  as  to  criminal  trials  should  be 
based  upon  fixed  standards,  and  should  be  clear,  definite, 
uniform  and  absolute."  ^ 

In  a  leading  case,^  the  deficiency  in  the  panel  was  caused 
by  the  withdrawal  of  a  juror  at  the  express  request  of  the 
prisoner  who  joined  in  a  written  stipulation  "  that  the  ver- 
dict in  this  cause  be  rendered  by  and  taken  from  the  remain- 
ing eleven  jurors,  and  that  the  twelve  names,  now  appearing 
of  record  as  the  jury  in  this  cause,  may  remain,  so  that  by 
record  this  cause  shall  appear  to  have  been  tried  by  twelve 
jurors."  The  prisoner  was  nevertheless  entitled  to  a  new 
trial.  The  reason  for  this  rule  is  that  the  State  has  an  inter- 
est in  the  preservation  of  the  liberties  and  lives  of  its  citizens, 
and  will  not  allow  them  to  be  taken  away  Avithout  due  process 
of  law.*  Or,  as  stated  by  the  Supreme  Court  of  Michigan, 
the  doctrine  of  waiver  rests  upon  assent ;  in  other  words, 
Avhen  reduced  to  final  analysis,  upon  contract ;  a  criminal 
proceeding  is  wholly  in  invitum  and  is  not  to  be  controlled  in 
this  manner,^ 

§    8.   Otherwise  in  Civil  Cases.  —  In  civil  cases  a   dis 
tinction  has  been  taken.     The  constitutions  of  many  of  the 
States  expressly  provide  that  in  such  cases  the  parties  may 
waive  a  trial  by  jury,  or  consent  to  a  trial  by  a  jury  of  less 


1  Cancemi  v.  People,  18  N.  Y.  128;  State  v.  Mansfield,  41  Mo.  470;  Brl 
V.  State,  44  Ala.  393;  Williams  v.  State,  12  Ohio  St.  622;  Allen  v.  State, 
04  Ind.  461;  Hill  v.  People,  16  Mich.  351.  Bnt  see  State  v.  Kaufman,  51 
Iowa  578;  s.  c,  9  Cent.  L.  J.  313. 

2  41  Mo.  478,  per  Wagner,  .J. 

3  Cancemi  v.  People,  supra. 
*  18  N.  Y,  137. 

5  Hill  V.  People,  16  Mich.  351. 


8  CONSTITITION  AND  KINDS  OF  TRIAL  JURIES.       [CII.   t. 

thjin  twelve'  But  in  the  absence  of  such  provisions,  it  is  not 
clear  that  a  waiver  hy  the  litigant  parties  of  a  full  jury 
would  not  be  l)inding.  As  stated  by  the  Court  of  Appeals 
of  New  York  in  a  case  before  noticed:  "Civil  suits  re- 
late to  and  affect,  as  to  parties  against  whom  they  are 
brought,  only  individual  rights  which  are  within  their  indi- 
vidual control,  and  which  they  ma}-^  part  with  at  their  pleas- 
ure. The  design  of  such  suits  is  the  enforcement  of 
merely  private  obligations  and  duties.  Any  departure 
from  legal  rules  in  the  conduct  of  such  suits,  with  the  con- 
sent of  the  defendants,  is  therefore  a  voluntary  relinquish- 
ment of  what  belongs  to  the  defendants  exclusively."  "^  In 
an  Indiana  case,  although  the  Constitution  provided  that 
<'  in  all  civil  cases  the  right  of  trial  by  jury  shall  remain  in- 
violate,"^ the  court  held  that  a  party  in  a  civil  suit  might  con- 
sent to  a  verdict  by  a  jury  of  less  than  twelve  men.* 

§  D.  How  in  Cases  of  Misdemeanor.  —  This  privilege 
of  waiving  a  full  jury  has  been  extended  to  cases  of  mis- 
demeanor also.^  Chief  Justice  IShaw  pointed  out  that 
even  in  the  administration  of  criminal  justice  many  legal 
provisions    are    made  for  the  security    and  benefit  of   the 


'  Cal.  Const.,  1879,  Art.  1,  §  7;  Colo.  Const.,  1876,  Art.  2,  §  23;  Fla. 
Const.,  1868,  Art.  1,  §  4;  111.  Const.,  1870,  Art.  2,  §  5;  Md.  Const.,  1867, 
Art.  4,  §  8.  Amend,  of  1875;  Midi.  Const.,  1850,  Art.  6,  §  27;  Minn. 
Const.,  1857,  Art.  1,  §  4;  Mo.  Const.,  1875,  Art.  2,  §  28;  Xev.  Const., 
1864,  Art.  1,  §  3;  X.  J.  Const.,  1844,  Art.  1,  §  7;  X.  Y.  Const.,  1846,  Art. 
1,  §  2;  Penn.  Const.,  1873,  Art.  5,  §  27;  Tex.  Const.,  1876.  Art.  1.  §  15; 
West  Va.  Const.,  1872,  Art.  3,  §  13;  Wis.  Const.,  1848,  Art.  1,  §  5.  In 
California,  three  fonrths  of  the  jury  in  civil  actions  may  render  a  verdict. 
Cal.  Const.,  1879,  Art.  1,  §  7;  see  also  Tex.  Const.,  1876,  Art.  5  ,§  13. 

2  Cancerai  v.  People,  18  X.  Y.  128,  136.  See  also  Murphy  v.  Com.,  1 
Mete.  (Ky.)  365,  366;  State  v.  Mansfield,  41  Mo.  470,  476;  Gillespie  v. 
Benson,  18  Cal.  409;  Cravens  v.  Gant,  2  T.  B.  Mon.  US;  Marlin  v. 
Stockbridgo,  14  Tex.  165.  But  contra  sec  Lindsay  v.  McWilliam,  3 
Craw.  &  Dix,  Irish  Cir.  27;  Mitten,  v.  Smock,  3  N.  J.  L.  911. 

3  Ind.  Const.,  1851,  Art.  1,  §  20. 
*  Durham  v.  Hudson,  4  Ind.  501. 

°  The  last  constitution  of  California  provides  that  --a  trial  hy  jury 
may  be  waived  in  all  criminal  cases,  not  amounting  to  felony,  by  the 
consent  of  both  parties  expressed  in  open  court."  Cal.  Const..  1879. 
Art.  1,  §  7. 


§   9.]  MUST  CONSIST  OF  TWELVE  MEN.  9 

accused,  which  it  may  be  for  his  interest  to  waive  ;  for  ex- 
ample, he  may  waive  a  trial  altogether  and  plead  guilty  ;  he 
jnay  consent  to  the  admission  of  testimony  not  strictly 
competent,  in  the  hope  that  he  may  derive  benefit  therefrom. 
A  speedy  trial  may  be  important  to  the  preservation  of  his 
testimony,  and,  aided  by  competent  counsel,  it  is  proper  to 
presume  that  he  is  the  best  judge  of  what  will  be  for  his 
advantage.  Therefore  having  consented  to  a  trial  by  less 
than  the  legal  number,  it  is  inconsistent  Avith  good  faith 
that  he  should  raise  objections  on  this  account.^  In  the 
same  case  this  learned  judge  thus  met  the  argument  which 
is  sometimes  made,  that  if  the  accused  were  permitted  to 
consent  to  a  trial  by  eleven  jurors,  so  he  might  to  any  num- 
ber however  small :  "It  appears  to  us,"  said  he,  "  that  it  is 
a  good  answer  to  say  that  no  departure  from  established 
forms  of  trial  in  criminal  cases  can  take  place  without  per- 
mission of  the  judge,  and  no  discreet  judge  would  permit 
any  such  extravagant  or  wide  departure  from  these  salutary 
forms  as  the  question  supposes,  nor  any  departure,  unless 
upon  some  unforeseen  or  urgent  exigency."^ 

Perhaps  the  reasoning  of  the  Massachusetts  court  goes  a 
little  too  far ;  for  what  is  there  said  would  be  as  applicable 
in  a  case  of  felony,  as  in  a  case  of  misdemeanor.^  The 
Supreme  Court  of  Kentucky  reached  the  conclusion  that  in 
prosecutions  for  misdemeanors,  where  the  penalty  imposed 
is  merely  a  fine,  an  agreement  by  the  defendant  to  be 
tried  by  a  jury  of  less  than  twelve  men  is  not  inconsistent 
with  any  rule  of  law  or  public  policy.'*     The  reason  for  this 


1  Com.  V.  Dailey,  12  Cush.  80.  To  the  same  effect  see  State  v.  Borow- 
sky,  11  Xev.  119;  State  v.  Cox,  8  Ark.  436, 447;  Sarah  v.  State,  28  Ga.  576; 
State  V.  Van  Matre,  49  Mo.  268. 

2  Ibid.  p.  83. 

''^  The  Supreme  Court  of  Iowa  has  lately  rendered  a  decision  which 
probably  stands  alone,  to  the  effect  that  in  the  trial  of  an  indictment  for 
felony  even,  the  defendant  may  consent  to  go  to  trial  with  eleven  jurors 
only.  The  court  rely  upon  the  reasoning  in  Com.  v.  Dailey,  supra. 
See  State  v.  Kaufman,  51  Iowa,  578;  s.  c,  9  Cent.  L.  J.  313. 

^  Murphy  v.  Com.,  1  Mete.  (Ky.)  365,  367.  So  held  by  the  Supreme 
Court  of  Missouri.     State  v.  Mansfield,  41  Mo.  470. 


10  COXSTITl'TIOX  AND  KINDS  OF  TRIAL  JL'KIES.       [cii.    1. 

ruling:  is  obvious.  A  iiiie  concerns  only  one's  estate.  In 
the  trial  of  a  niisdenicanor  thus  i)unished,  nothing  more  is 
involved  in  the  issue  than  is  fre<|uently  involved  in  civil 
cases,  as  to  which  no  good  reason  a})pears  why  the  inter- 
ested parties  may  not  waive  a  jury  of  the  legal  number. 
A  later  case,  however,  seems  to  disregard  the  distinction 
here  taken,  and  to  hold  that  agreements  of  the  kind  under 
discussion  are  good  in  the  trial  of  misdemeanors  geiierally.' 
§  10.  PoAvcr  <>f  IjcgislatiiiM'  to  luitliorizc  Jury  of  loss 
than  TavcIv*'.  —  The  legislature  has  no  power,  in  the  ab- 
sence of  constitutional  authorization,  to  pass  an  act  fixing 
the  number  of  the  jury  at  less  than  twelve  in  cases,  civil  or 
criminal,  tried  in  certain  inferior  courts  of  record.  Such 
legislation  is  obnoxious  to  the  familiar  constitutional  pro- 
vision preserving  the  right  of  trial  by  jury  inviolate.-'  But 
whenever  facts  are  to  be  found  in  any  proceeding  in  which 
a  jury  was  not  required  by  the  common  law,  a  jury  of  any 
number  may  be  authorized,  within  the  discretion  of  the 
legislature.  Thus,  justices'  courts,  not  being  courts  of 
record,  are  not  Avithin  the  constitutional  provision  just 
noticed.  Juries  did  not  form  a  part  of  the  machinery  of 
such  tribunals  at  common  law  ;  and  so  long  as  an  appeal  is 
provided  for  to  the  common  law  courts  from  their  determi- 
nations, no  constitutional  objection  can  arise,  whether  the 
facts  are  found  by  the  justice  or  by  the  aid  of  a  jury  of 
any  number  of  men.^     And  in  courts  Avhich  exercised  their 

1  Tyra  v.  Coin.,  2  Mete.  (Ky.)  1. 

iiNorval  v.  Rice,  2  Wis.  23;  May  v.  Milwaukee,  etc.  E.  Co.,  3  Wis. 
219;  Work  v.  State,  2  Ohio  St.  296;  Vaughn  v.  Scade,  30  Mo.  600;  Fos- 
ter v.  Kirby,  31  Mo.  496;  Allen  v.  State,  51  Ga.  264;  Henniug  v.  Hanni- 
bal, etc.  R.  Co..  35  Mo.  408.  See  also  (he  opinion  of  the  justices  of  the 
Supreme  .Judicial  Court  of  New  Hampshire,  upon  questions  jiroposed 
by  the  House  of  Representatives,  June.  15.  1880,  41  N.  H.  5.50. 

sEmerick  v.  Harris.  1  Binn.  416;  Work  v.  State,  2  Ohio  St.  206; 
Vaughn  v.  Scade,  30  Mo.  000.  604;  Bryan  v.  State.  4  Iowa.  349;  State  v. 
Beneke,  9  Iowa,  203;  Norton  v.  McLeary,  8  Ohio  St.  205;  Dawson  v. 
Iloran,  51  Barb.  549;  Knight  v.  Campbell.  02  Barb.  16  (overruling  Bax- 
ter v.  Putney,  37  How.  Tr.  140)  ;  People  v.  Lane,  6  Abb.  Pr.  (xV.  s.)  105; 
Ward  V.  People,  30  Mich.  116;  State  v.  Gutierrez.  15  La.  An.  190.  The 
statutes  generally  provide  that  a  justice's  jury  shall  consist  of  six  men, 
unless  the  parties  agree  upon  a  less  number. 


§    12.]  MUST  CONSIST  OF  TWEL\  E  MEN.  11 

functions  without  the  aid  of  a  jury,  prior  to  the  adoption 
of  a  constitution  providing  that  trial  by  jury  shall  remain 
"  as  heretofore,"  a  conviction  by  a  jury  of  less  than 
twelve  men  will  be  legal. ^ 

The  constitutions  of  many  of  the  States,  however,  pro- 
vide that  in  criminal  cases,  tried  before  courts  not"  of 
record,  or  inferior  courts,  the  number  of  the  jury  may  be 
less  than  twelve,  as  prescribed  by  law.^ 

§  11.  What  if  more  than  Twelve  are  impanelled.  — 
If  a  jury  of  more  than  twelve  has  been  impanelled,  and 
the  last  juror  sworn  can  be  pointed  out  during  the  trial,  he 
may  be  dismissed  from  the  panel,  and  the  trial  will  pro- 
ceed.^ 


Article  III. — The  Special  Jury. 

SECTION. 

12.  Origin  of. 

13.  Uuder  the  Eiiglisli  Practice. 

(1.)  yrheu  and  how  summoned. 

(2.)  The  Jury  struck  must  try  tlie  Issue  —  Abuses  under  tliis 

Kule. 
(3.)  Default  of  Special  Jurors. 
(4.)  Costs  of. 

14.  Under  American  Statutes. 

(1.)  Under  what  circumstances  granted. 

(2.)  How  Struck. 

(3.)  Jurors  liaving  Special  Qualifications. 

(4.)  Costs  of, 

§  12.  Origin  of . — This  differs  from  the  common  jury 
in  certain  incidents  of  its  formation.     That  it  was  early 

1  Duffy  V.  People,  6  Hill,  75;  People  v.  Justices,  74  N.  Y.  406;  People 
V.  Clark,  23  Hun,  374. 

a  Colo.  Const.,  1875,  Art.  2,  §  23;  Ga.  Const.,  1S68,  Art.  5,  §  4,  sub- 
sec.  5;  Iowa  Const.,  1857,  Art.  1,  §  9;  Amend,  to  Fla.  Const.,  1868,  Art. 
G.  §  12,  ratified  1875;  Mich.  Const.,  1850,  Art.  6,  §  28;  Mo.  Const.,  1875,. 
Art.  2,  §  28;  Xeb.  Const..  1866-67,  Art.  1,  §  5  (Const.  1875,  Art.  1,  §  6)  ; 
S.  C.  Const.,  1865,  Art.  9,  §  7. 

»Muirhead  v.  Evans,  6  Exch.  447;  Bullard  v.  State,  38  Tex.  504; 
Davis  V.  State,  9  Tex.  App.  634. 


12  COXSTITrTIOX  AND  KINDS  OF  TRIAL  JIRIES.      CH.  I.] 

known  to  the  eoniinon  law,  appears  from  the  rule  prescribed 
in  Salkekl  for  its  formation,  which  differs  not  materially 
from  that  generalU^  observed  at  the  present  day.  Upon 
the  authority  of  this  reporter,  it  appears  that  a  rule  was 
made  in  the  King's  Bench,  Trinity  Term,  8  Will.  Ill,  that 
*'  when  the  master  is  to  strike  a  jury,  viz.,  forty-eight  out 
of  the  freeholders'  book,  he  shall  give  notice  to  the  attor- 
neys of  both  sides  to  be  present,  and  if  one  comes  and  the 
other  does  not,  he  that  appears  shall,  according  to  the 
ancient  course,  strike  out  twelve  ;  and  the  master  shall  strike 
out  the  other  twelve  for  him  that  is  absent."  ^ 

Special  juries  appear  to  have  been  first  introduced  in  the 
King's  Bench,  upon  trials  at  bar,  in  causes  of  great  conse- 
quence,^ or,  as  stated  by  Blackstone,  "  when  the  causes 
were  of  too  great  nicety  for  the  discussion  of  ordinary 
freeholders  ;  or  where  the  sheriff  was  suspected  of  partial- 
ity, though  not  upon  such  such  apparent  cause  as  to  warrant 
an  exception  to  him."^  Later  the  practice  seems  to  have 
become  quite  general  in  all  the  courts  of  allowing  them, 
upon  simple  application  in  any  civil  case,  as  a  matter  of 
course,  or  at  least  they  seem  to  have  been  easily  procured 
when  the  granting  Mas  within  the  discretion  of  the  court.* 

§  13.  Uiirtor  the  English  Practice.  —  (1.)  When  and 
how  summoned. —  Under  the  English  practice  no  rule  for 
a  special  jury  is  granted  before  issue  joined.^  A  party 
applying  for  a  special  jury  must  do  so  in  time  to  permit 
the  jurors  to  be  summoned  ;  otherwise  the  conmion  jury 
will  not  be  held  to  be  superseded.''     But  where  the  striking 

1  Anon..  1  Salk.  405.  Whore  a  special  jniy  is  improperly  struck,  a 
party  wlio  was  represented  by  attorney  at  tlie  strikin<i,-,  and  concurred  in 
what  was  done  without  objection,  cannot  complain  of  this  informalitj' 
after  verdict.     Shipman  v.  Birmingham,  5  Up.  Can.  Q.  B.  (O.  8.)  442. 

2  2  Tidd.  Pr.  788. 

s  :3  Bl.  Comm.  357. 

*  Hall  V.  Perott,  Bald.  123,  and  authorities  cited. 

^Sayerv.  Dncroix,lGL.  J.  (Q.  B.)  120;  s.c.^suh  «om.  Sayer  v.  Dufaur, 
i)  Q.  B.  800;  Dresser  v.  Xorman,  G  C.  B.  (X.  S.)  427. 

6  Gunn  V.  Honey  man,  2  Barn.  &  Aid.  400;  Phelps  v.  Keiley,  11  L.  J.  (C. 
P.)  99;  Johnson  v.  Blackwell,  G  Car.  &  P.  2:50;  Clandinan  v.  Dickson. 
S  Up.  Can.  Q.  B.281;  Bond  v.  State,  23  Ohio  St.  349;  Wiiitehead  v.  State 


§   13.]  SPECIAL  JURIES.  13 

of  the  juiy  is  delayed  by  circumstances  beyond  the  control 
of  the  party  applying  for  the  same,  the  delay  will  not  be 
imputed  to  his  laches.^ 

In  making  up  the  list  from  which  a  special  jury  is  to  be 
struck,  the  officer  charged  with  this  duty  is  not  obliged  to 
take  the  names  in  an}^  order  in  which  they  stand  upon  the 
register  of  jurors.  He  may  make  a  selection  of  names  of 
persons  who,  from  their  position  in  the  community,  are  more 
likely  to  be  possessed  of  that  intelligence  which  is  sought 
in  a  jury  of  this  kind.'^ 

(2.)  The  Jury  struck  must  try  the  Issue — Abuses  under 
this  Rule. — The  language  of  statutes  authorizing  the  strik- 
ing of  juries  to  the  effect  that  "  every  jury  so  struck  shall 
be  the  jury  returned  for  the  trial  of  the  issue,"  ^  has  been 
interpreted  as  imperative  ;  therefore  a  new  jury  cannot  be 
struck  because  of  a  default  in  the  attendance  of  the  jury, 
nor  in  that  event  can  the  case  be  tried  by  a  common  jury.* 

10  Ohio  St.  449 ;  Sutton  v.  State.  9  Oliio,  133 ;  O'Brien  v.  Minneapolis,  22 
Minn.  37S;  McArtlmr  v.  Carrie,  32  Ala.  75;  Eose  v.  St.  Charles,  49  Mo. 
509. 

^  Gurney  v.  Chapman,  3  Dowl.  &  L.  734. 

«  King  V.  Wooler,  1  Barn.  &  Aid.  193. 

3  3  Geo.  II,  c.  25  §  15;  G  Geo.  IV,  c.  50  §  30. 

*  Kex  V.  Perry,  5  Term  Rep.  453 ;  Hall  v.  Meddowcroft,  4  Man.  &  Sel. 
467;  Hague  v.  Hall,  5  Man.  &  Gr.  693;  Haldane  v.  Beanclerk,  3  Exch. 
658;  Newman  v.  Graham,  11  C.  B.  153;  Bradbury  v.  Baillie,  1  Allen 
CN.  B.)  427.  But  see  Archer  v.  Bamford,  1  Car.  &  P.  64 ;  Eex  v.  Derbi- 
shire,  1  Moo.  &  Eob.  307.  The  rule  was  reluctantly  acquiesced  in  by  the 
court  of  Queen's  Bench.  Lord  Campbell  stated  that,  if  the  matter  were 
res  iji^egra,  he  should  come  to  a  contrary  conclusion.  See  Montague  v. 
Smith,  17  Q.  B.  688,  692.  The  court  may  for  good  cause  discharge  a 
special  jury  from  the  trial  of  a  cause  for  which  they  were  struck,  as 
where  it  is  shown  that  they  are  corrupt,  or  have  rendered  a  verdict  upon 
a  previous  case  involving  the  same  facts,  with  which  the  court  is  dissat- 
isfied (Doncaster  v.  Coe,  3  Taunt.  404)  ;  or  where  the  case  is  exceedingly 
important,  and  it  is  quite  improbable  that  a  jury  can  be  secured  without 
a  tales^  on  account  of  the  absence  or  exemption  of  many  of  the  panel. 
Atty.  Gen.  v.  Goodman,  8  Price,  220.  The  jury  may  also  be  discharged 
because  of  irregularities  in  the  striking.  People  v.  Dillon,  17  Hun,  1; 
Ross  V.  Eason,  2  Yeates,  126 ;  Brown  v.  State,  18  Ohio  St.  496.  The  panel 
of  special  jurors  having  been  lost  after  the  list  was  struck,  and  before 
the  jurors  were  summoned,  the  court  will  order  the  list  to  be  struck 
again.    Hall  v.  Perott,  1  Bald.  123. 


14  CONSTITUTION  AND  KINDS  OF  TRIAL  JURIES.       [CH.   I. 

A  comniou  abuse  o-i-cw  out  of  this  rule.  The  defendant,  for 
mere  purposes  of  delay,  would  procure  a  rule  for  the  strik- 
ing of  a  jury,  and  by  neglecting  to  have  them  summoned, 
the  trial  was  necessarily  postponed.  The  only  recourse  was 
for  the  plaintiff  to  give  directions  for  the  summoning  of  the 
jury,  although  struck  at  the  suggestion  of  the  defendant.' 
This  evil,  however,  was  remedied  by  a  sul)scquent  statute, 
which  provided  that  in  default  of  notice  to  summon  a  jury 
after  it  had  l)een  struck,  the  cause  might  be  tried  by  a  com- 
mon jury.'-  Before  the  statute  just  noticed,  a  rule  made 
for  a  si)ecial  jury  would  not  be  discharged  upon  the  sug- 
gestion that  it  was  obtained  for  purposes  of  delay ;  ^  but 
under  the  statute,*  the  proper  application  to  the  court  is  for 
a  rule  to  show  cause  why  the  case  should  not  be  tried  by  a 
special  jury,  in  its  order,  at  the  sitting  for  which  the  notice 
was  given,  if  the  defendant  shall  then  have  one  in  attend- 
ance, and,  in  default  thereof,  that  the  cause  be  tried  by  a 
•common  jury.^ 

(3.)  Default  of  Special  Jurors. — If  enough  of  the  spe- 
cial jurors  attend  to  try  the  cause,  the  trial  may  proceed, 
although  certain  of  the  jurors  have  not  been  summoned.*' 
In  case  of  a  failure  to  summon  such  jurors,  an  application 
may  be  made  to  the  discretion  of  the  court  for  a  postpone- 
ment of  the  trial,  or,  under  some  circumstances,  for  the 
granting  of  a  new  trial.'  The  former  application  should  be 
made  before  proceeding  to  trial,  and  the  decision  of  the 
court  thereon  will  not  constitute  error  in  law  which  an 
appellate  court  wall  correct."^  Upon  the  latter  application 
some  prejudice  to  the  complaining  party  must  be  shown. 

1  Wilson  V.  Butler,  2  Moo.  &  Rob.  78. 

2 15  &  10  Vie.  c.  76.  §  113;     Cawley  v.  Knowlcs,  IG  C.  B.  (N.  S.)  107. 

3  Bloxaui  V.  Brown, 3  Taunt.  470;  Bull  v.  Pinkus, .")  Scott,  617;  Thornc 
v.  Londonderry,  S  Bing.  2G;  Andrews  v.  Thornton,  S  Bing.  64. 

Mill. 

5  Gray  v.  Knight,  16  C.  B.  143;  Bush  v.  Pring,  9  Dowl.  ISO. 

•  Morvey  v.  Maynard,  4  Up.  Can.  Q.  B.  (O.  S.)  323. 

'  Irwin  V.  Grey,  L.  R.  1  C.  P.  171,  173. 

«  Irwin  V.  Grey.  19  C.  B.  (N.  S.)  585;  s.  c.  aff'd.  in  L.  R.  1  C.  P.  171 
and  L.  R.  2  H.  L.  20. 


§    14.]  SPECIAL  JURIES.  15 

It  is  not  eiiouiih  that  the  party  was,  until  after  the  trial, 
Ignorant  of  the  fact  that  certain  of  the  jurors  had  not 
been  summoned.^ 

(4.)  Costs  of. — By  the  English  jury  act  the  party  apply- 
ing for  a  special  jury  is  lixcd  with  the  costs  of  the  same, 
*'  unless  the  judge  before  whom  the  cause  is  tried  shall, 
immediately  after  the  verdict,  certify  under  his  hand,  upon 
the  back  of  the  record,  that  the  same  was  a  cause  proper  to 
be  tried  by  a  special  jury."  ^ 

§  14.  Under  American  Statutes.  —  (1.)  Under  lohat 
Circumstances  granted. — In  some  of  the  States  a  special  or 
struck  jury  is  granted  as  of  course  upon  the  application  of 
either  party .^  In  other  States  something  more  than  a  for- 
mal application  is  necessary  in  order  to  procure  this  jury. 
A  section  of  the  New  York  Code  of  Remedial  Justice  pro- 
vides, that  "  where  it  appears  to  the  court  that  a  fair  and 
impartial  trial  of  an  issue  of  fact,  triable  by  a  jury,  joined 
in  an  action,  pending  in  the  supreme  court,  or  in  a  superior 
city  court,  cannot  be  had  without  a  struck  jury,  or  that  the 
importance  or  intricacy  of  the  case  requires  such  a  jury, 
the  court  must  make  an  order,  upon  notice,  directing  a 
special  jury  to  be  struck  for  the  trial  of  the  issue."  * 

1  Kex  V.  Hunt,  4  Barn.  &  Aid.  430. 

2  6  Geo.  4,  c.  50,  §  34.  Lord  Ellenborongh  construed  similar  language 
in  a  previous  act  to  forbid  the  granting  of  the  certificate  upon  the  day 
after  the  trial.  Waggett  v.  Shaw,  3  Camp.  315.  See  also  Skipper  v. 
Bodkin,  2  S\v.  &  Tr.  1;  Dillon  v.  Caffrey,  Irish  K.  6  Eq.  363;  Grace  v. 
Clinch,  4  Q.  B.  606;  Leech  v.  Lamb,  11  Exch.  437.  This  language  has 
been  regarded  as  having  reference  to  a  reasonable  time  after  the  rendition 
of  the  verdict.  The  certificate  may  be  granted  even  after  the  adjourn- 
ment of  court.  Thompson  v.  Gibson,  8  Mee.  &  W.  281 ;  Page  v.  Pearce, 
8  Mee  &  W.  677 ;  Christie  v.  Richardson,  10  Mee  &  W.  688.  An  applica- 
tion for  such  certificate  was  not  too  late  when  made  on  the  morning  next 
after  verdict,  before  any  intermediate  cause  was  taken  up.  Goode  v. 
Joynt,  Irish  R.  8  Eq.  425. 

3R.  S.  Ohio,  1880,  §  5185;  R.  S.  Mo.  1879,  §  2802;  R.  S.  Del.  1874,  ch. 
109,  §  6;  Ark.  Dig.  Stat.  1874,  §  3703;  Code  Ga.l873,§  3932;  Miller's  R. 
C.  Iowa,  1880,  §  2778.  So  in  Alabama,  in  all  civil  cases  sounding  in 
damages,  or  where  the  amount  in  controversy  exceeds  one  hundred  dol- 
lars.    Code  Ala.  1876,  §  3018. 

<  §  1063.    See  also,  Rev.  N.  J.  1877,  p.  527,  §  18;  Comp.  L.  Mich.  1871, 


16  CONSTITUTION  AND  KINDS  OF  THIAL  .TUKIES.       [CH.    I. 

The  hinuinigc  of  the  forefroiiig  section  is  substantially 
that  of  a  section  of  the  Kevised  Statutes  of  1820.^  The 
settled  construction  which  has  been  put  upon  this  provision 
is  that  a  special  jury  ought  to  be  granted  only  in  extreme 
cases. "^  Under  this  statute  it  has  been  held,  that  testing 
the  genuineness  of  a  signature  to  a  note  is  not  a  question 
of  intricacy  demanding  more  than  ordinary  intelligence, 
although  there  might  be  some  difiiculty  in  arriving  at  a  sat- 
isfactory conclusion.  And  as  to  the  "  importance"  of  the 
case,  the  court  considered  that  the  criterion  was  not  so 
much  the  probable  amount  of  recovery,  as  the  public  in- 
terest excited.^ 

§  G005;  2  Ind.  Rev.  1876,  p.  159,  §  1,  note;  R.  S.  La.  1876,  §  2153. 
Where  a  statute  fjjives  to  the  trial  judo^e  power  to  order  a  special  jury, 
iipoa  the  motion  of  either  party,  "  if,  in  the  opinion  of  the  court,  it  is 
proper,"  an  appellate  court  will  not  review  the  reasons  upon  which 
the  trial  judge  acted.  Clingan  v.  Railroad,  2  Lea  (Teun.)  726.  See 
also,  Neff  v.  Neff,  1  Binn,  350;  Union  Sav.  Bank  v.  Edwards,  47  Mo.  445. 

1  2R.  8.,  p.  418,  §  46. 

2  Patchiu  V.  Sands,  10  Wend.  570;  People  v.  McGuire,  43  How.  Pr.  67. 
The  mere  affidavit  of  counsel,  that  the  cause  is  intilcate  and  important, 
is  not  sufficient.  Facts  must  he  laid  before  the  court,  from  which  this 
may  be  seen.  Manhattan  Co.  v.  Lydig.  2  Caines,  380;  s.  c,  Col.  &  Cai. 
423;  Livingston  v.  Columbian  lus.  Co.,  2  Caines,  28. 

3  Poucher  v.  Livingston,  2  Wend.  296;  Anon.,  1  Johns.  314;  Wright 
V.  Columbian  Ins.  Co.,  2  Johns.  211;  Murphy  v.  Kipp,  1  Duer,  659. 
But  see  Livingston  v.  Smith,  1  Johns.  141.  An  action  upon  a  policy  of 
marine  insurance  was  held  to  be  not  necessarih*  intricate,  Avhere  the 
defense  turned  upon  the  unseaworthiness  of  the  vessel  at  the  time 
she  sailed,  and  on  the  fact  that  the  master  was  chargeable  with  a  want 
of  competency  and  seamanship  in  not  making  a  near  port  of  distress,  as 
he  might  have  done  at  the  time  when  the  water  was  alleged  to  have 
been  gaining  upon  his  vessel.  Walsh  v.  Sun  Mutual  Ins.  Co.,  2  Robt. 
616;  s.  c,  17  Abb.Pr.  356.  See  also  Nesmithv.  Atlantic  Ins.  Co.,  8  Abb. 
Pr.  423.  Nor,  in  the  opinion  of  the  court,  was  public  interest  positivelj' 
shown  from  the  circumstance  that  the  suit  grew  out  of  a  long  agitated 
controversy  between  the  town  officers  and  the  plaintiff  relative  to  a  con- 
templated street  improvement.  Patchin  v.  Sands,  10  Wend.  570.  Com- 
pare Stryker  v.  Turnbull,  3  Caines,  103.  The  suggestion  that  the  United 
States  was  interested  in  a  cause  did  not  make  it  important.  Hartshorn 
v.  Gelston,  3  Caines,  84.  A  special  jury  was  refused  to  try  the  question 
of  title,  in  the  nature  of  quo  icarranto,  to  the  office  of  justice  of  a  dis- 
trict court  in  the  city  of  New  York.  People  v.  McGuire,  43  How.  Pr.  67. 
It  has,  however,  been  granted  in  actions  on  the  case  for  libel  of  public 


§    14.]  SPECIAL  JURIES.  17 

One  of  the  parties  being  a  citizen  of  color,  the  judge 
cannot  properly  direct  a  special  jury  to  be  impannelled, 
one-half  of  whom  are  of  African  descent.^ 

(2.)  How  Struck. —  The  statutory  method  of  striking  is 
held  to  be  mandatory.  A  statute,  directing  the  court  to 
appoint  some  suitable  disinterested  person  to  strike  for  a 
party  neglecting  to  act,  does  not  authorize  the  judge  him- 
self to  strike  for  one  of  the  parties'ref using  to  act.^ 

In  some  cases,  before  the  striking  begins,  we  find  it  per- 
mitted to  a  party  to  make  challenges  to  jurors  for  cause,  in 
a  panel  arrayed  for  this  purpose.^ 

(3.)  Jurors  having  special  Qualifications. — A  statute, 
authorizing  the  summoning  of  jurors  of  a  certain  occupa- 
tion, profession  or  trade,  for  the  decision  of  a  case  requir- 
ing special  knowledge,  must  be  construed  in  connection 
with  a  general  provision  prescribing  the  qualifications  of 
jurors.  They  must  be  otherwise  competent  as  jurors,  be- 
sides possessing  the  qualifications  demanded  of  special 
jurors.* 

(4.)  Costs  of. — AVhere  the  formalities  of  the  striking 
are  such  as  cause  special  costs,  these  properly  fall  upon  the 
party  applying  for  the  jury,  unless  the  court,  after  the 
trial,  certifies  that  the  case  was  of  such  a  character  that  the 
demand  for  a  special  jury  was  proper.^     In  Ohio,  the  party 

officers,  when  the  libel  related  to  the  official  conduct  of  the  officer,  but 
not  otherwise.  Spencer  v.  Sampson,  1  Caines,  498;  Foot  v.  Croswell,  1 
Caiues,  498;  Livingston  v.  Cheetham,  1  Johns.  61 ;  VanVechten  v.  Hop- 
kins, 2  Johns.  373 ;  Thomas  v.  Croswell,  4  Johns.  491 ;  Thomas  v.  Kum- 
sey,  4  Johns.  482.  It  was  refused  in  an  action  for  libel  against  a  minister 
of  a  foreign  government.     Genet  v.  Mitcliell,  4  Johns.  186. 

1  Nashville  v.  Sheperd,  3  Baxt.  (Tenn.)  373;  post,  §  29. 

2  Gallagher  v.  State,  26  Wis.  423.  Upon  this  point  see  Hnlse  v.  State, 
35  Ohio  St.  421;  O'Brien  v.  Minneapolis,  22  Minn.  378,  Ex  parte 
striking  justified  under  rule  of  court.  See  Long  v.  Silencer,  78  Pa.  St. 
303. 

3  Davis  V.  Hunter,  7  Ala.  135;  Pike  County  Justices  v.  Griffin,  15  Ga. 
39;  Howell  v.  Howell,  59  Ga.  145;  Nelson  v.  Dickson,  63  Ga.  682.  Such 
a  course  is  irregular.     Denn  v.  Lecony,  1  N.  J.  L.  39. 

4  Golding  v.  Petit,  27  La.  An.  86. 

^SeeR.  S.  Mo.  1879,  §  2802;  R.  S.  Del.  1874,  di.  109,  §  18;  2  Ind. 
Rev.  1876,  p.  159,  §  1,  note. 

(•2) 


18  CONSTITUTION  AM)  IvINDS  OF  TIMAL  .UIMKS,       [cil.   I. 

jipplvinji"  for  tlu>  jui'v,  ii-rcspcctive  of  the  result,  is  l)ouncl 
to  i)av  tlio  rosts  of  striking,  sununoning,  iin|)iii)('lliMg  and 
<|ualifviiig,  and  one-half  of  the  jury  fees.^ 


Article  ]\\ — 'I'iie  Jirv-de  Medietate  Linguae. 

SECTION. 

IG.  Origin  and  History  of. 

17.  Generally  abolished  by  Statute. 

§  IG.  C)rij;ui  and  History  of.  —  This  jtiry  had  an  early 
existence  at  common  law,-  and  seems  to  have  owed  its  ori- 
gin to  the  policy  of  encouraging  foreign  merchants  to  come 
Avithin  the  realm  for  puri)oses  of  trade.  A  statute  of  Edw. 
III.^  enacted,  that,  when  both  merchants  were  foreigners, 
the  jur}^  should  be  composed  wholly  of  foreigners.  Where 
one  was  a  foreigner,  and  the  other  a  denizen,  half  of 
the  juiy  should  be  foreigners  and  half  denizens  ;  and  if 
both  were  denizens,  then  all  the  jury  should  be  denizens. 
The  origin  of  this  jury  is  generally  attributed  to  this  statute, 
but  Mr.  Forsyth  alludes  to  an  earlier  statute  of  Edw.  I., 
in  which  this  jury  is  guaranteed  in  criminal  cases  also,  ex- 
cepting those  capital.^  B}^  a  later  statute  of  Edw.  III.,^  the 
privilege  of  trial  by  this  jury  was  extended  to  all  foreigners, 
whether  merchants  or  not,  and  in  all  cases,  "  although  the 
King  be  a  party."  liut  this  privilege  was  afterwards  cur- 
tailed in  capital,  and  certain  other  cases."  The  alien  was 
compelled  to  pra}^  for  this  juiy,  before  the  general  venire 
issued."  The  right  of  an  alien  to  this  jury  was  confirmed 
by  the   English   consolidated  jury   act,"*  in  indictments    of 

'  R.  S,  Oliio  1S80,  §  r)lSS;  X.  Y.  Code  Rem.  Jus.,  §  1009;  Conip.  Laws 
Mich.  1871.  §  600.-);  Rev.  X.  J.  1877,  p.  .■)2D,  §  IS. 

2  Forsyth,  Trial  by  Jury,  p.  228. 

3  27  Edw.  Ill,  c.  8. 

*  Forsytli.  Trial  by  Jury,  p.  220. 
•'-  28  Edw.  III.,  c.  13,  §  2. 

«  Sherley's  Case,  2  Dyer,  144,  a,  pi.  (.-)9.) 
'  Symons  v.  Spinosa.  3  Dyer,  357,  pi.  (4.5.) 

*  6  Geo.  IV,  c.  50.  §  47. 


§    17.]  JURY  DE  MEDIETATE  LINGUAE.  19 

felony  and  misdemeanor,  and  illustrations  of  the  practice 
are  afforded  by  many  modern  cases  in  the  English  reports.^ 
§  17.  Generally  abolished  by  Statute.  —  But  by  a  late 
English  statute  it  is  enacted  that  an  alien  shall  be  no 
longer  entitled  to  this  jury,  l)ut  shall  be  trial)le  in  the  same 
manner  as  if  he  were  a  natural  born  subject.^  The  right  to 
ii  jury  of  this  character  was  recognized  in  a  few  eiu-ly 
<?ases  in  this  country,^  denied  in  others,*  and  is  noAv  quite 
generally  abolished  by  statute,^  although  in  Kentucky  it 
may  still  be  directed  by  the  court. '^ 

1  Reg.  V.  Manning,  1  Den.  C.  C.  467;  s.  c,  Temple  &  Mew,  155;  13 
Jnr.  962;  19  L.J.  (M.  C.)  1 ;  4  Cox  C.  C.  31 ;  Sidoli's  Case,  1  Lewin  C. 
C.  244;  Reg.  v.  Giorgetti,  4  Fos.  &  F.  546;  Reg.  v.  Miller,  8  Low.  Can. 
Jur.  280;  Reg,  v.  Vonhoff,  10  Low.  Can.  Jur.  292;  Reg.  v.  Chamaillard, 
IS  Low.  Can.  Jnr.  149;  Reg.  v.  Dougall,  18  Low.  Can.  Jur.  85;  s.  c. 
Ibid.  242;  Levingerv.  Reg.,  L.  R.  3  P.  C.  282. 

2  33  Vict.  c.  14,  §  5. 

3  Respnblica  v.  Mesca,  1  Dall.  73;  People  v.  McLean,  2  Jolins.  381; 
United  States  v.  Carnot,  2  Cranch  C.  C.  469;  Richards  v.  Com.,  11  Leigh. 
690;  Brown  V.  Com.,  11  Leigh,  711. 

"^  State  V.  Antonio,  4  Hawl<s,  200 ;  United  States  v.  McMahon,  4  Cranch 
C.  C.  573;  State  v.  Fuentes.  5  La.  An.  427. 

5]Sr.  Y.  Code  Rem.  Jus.,  §  1190;  Code  Ala.  1876,  §  4886;  R.  C.  Md; 
1878,  Art.  62,  §  17;  R.  S.  111.  1880,  ch.  38,  §  429;  Gen.  Laws  Colo.  1877, 
§  S18;  R.  S.  Mo.  1879,  §  1892;  Comp.  L.  Mich.  1871,  §  6012;  1  Bright. 
Purd.  Dig.  p.  837,  §  71;  TS.  p.  385,  §  45. 

CG.  S.  Ky.  1879,  p.  571,  §  6. 


20  QUALIFICATIONS  FOR  JURY  DUTY.  [Cl1.ll. 


CHAPTER    II. 


OF  QUALIFICATIONS  FOR  JURY  DUTY. 
SECTION. 

21.  Freehold  Qualification  at  Common  Law. 

22.  In  some  States  regulated  bj^  Constitution. 

23.  But  generally  left  to  Legislation. 

24.  Subject  to  an  Inhibition  against  impairing  the  Right. 

25.  And  subject  in  some  Cases  to  special  Checks  and  Restrictions! 

26.  Enumeration  of  Qualifications  prescribed  by  Statute. 

27.  Statutes  limiting  Jury  Duty  to  white  Persons  unconstitutional. 

28.  Causes  for  this  Reason  removable  to  Federal  Courts. 

29.  But  not  merely  because  Colored  Jurors  have  been  wrongfullj' ex- 

cluded from  the  Panel. 

30.  Remedy  by  Writ  of  Error  from  the  Supreme  Court  of  the  United 

States. 

31.  Qualifications  of  -Jurors  in  the  Federal  Courts. 

§21.  Freehold  Qualification  at  Coiuiuon  Law.  —  That 
the  early  common  law  required  some  freehold  qualifi- 
cation of  jurors,  seems  clear,  l)ut  evidently  to  no  certain 
amount.^  By  an  early  statute,^  however,  the  qualification 
in  most  cases  was  fixed  at  40.s.^  Nor  was  the  law  very  ex- 
acting as  to  how  the  juror  was  possessed  of  freehold,  it 
being  sufficient  that  he  had  the  use  of  it  in  his  own  or  his 
wife's  right.'*  This  Avant  of  freehold,  however,  was  no 
cause  of  disqualification  in  cities  and  corporations  ;  for,  as 
was  observed  in  one  case,  "  in  some  corporations  there  are 
no  freeholders  at  all,  and  so  justice  would  fail."  ^ 

1  2  Hawk.  P.  C,  §  12;  Sharkey,  C.  J.,  in  Byrd  v.  State,  1  How.  (Miss.) 
163,  17G,  citing  3  Bac.  Abr.  751-2;  4  Bl.  Com.  302;  Co.  Litt.,  §  464. 

2  2  Hen.  V,  c.  3. 

^  Thomas'  Case,  1  Dyer,  99,  pi.  (67).    By  the  consolidated  jury  act.  G 
Geo.  IV,  c.  50,  §  1,  the  freehold  qualification  is  fixed  at  101. 

4  Ibid. 

5  Rex  v.  Worcester.  Sir  T.  Raym.  485;  Rex  v.  Russel,  2  Show.  310. 


§   23.]       FREEHOLD  QUALIFICATION  AT  COMMON  LAW.  21 

§    22.    In   some    States    regulated   by    Constitution. — 

The  constitutions  of  the  several  States  make  scarcely 
any  attempt  to  define  the  qualifications  of  jurors.  The 
constitution  of  Florida  prescribes  that  they  shall  be  taken 
from  the  registered  voters  of  the  respective  counties  ;^  that 
of  Georgia,  that  they  shall  be  upright  and  intelligent  per- 
sons ;  ^  while  the  framers  of  the  present  constitution  of 
New  Hampshire  were  content  to  declare  simply  that,  "  in 
•order  to  reap  the  fullest  advantage  of  the  inestimable 
privilege  of  trial  by  jury,  great  care  ought  to  be  taken  that 
none  but  qualified  persons  should  be  appointed  to  serve."  ^ 
§  23.  But  generally  left  to  Legislation.  —  The  matter 
of  prescribing  the  qualifications  of  jurors  seems  to  be 
tacitly  left  to  the  legislatures  in  the  several  States.  The 
right  of  the  legislature  to  prescribe  such  qualifications  has 
been  seldom,  indeed,  questioned.*      The  citizen  cannot,  as 

1  Const.  Fla.  1868,  Art.  VII,  §  12. 

2  Const.  Ga.  1868,  Art.  V,  §  13,  subsec.  2. 

3  Const.  N.  H.  1792,  Part.  I,  Art.  21. 

•*  In  a  late  case  it  was  decided  by  the  Supreme  Court  of  Illinois  that 
the  le£:islature  had  power  to  dispense  with  the  freehold  qualitieation 
existing  at  common  law  and  at  the  time  of  the  adoption  of  an  existing 
constitution  declaring  that  "  the  right  of  trial  by  jury  shall  remain  in- 
violate.'' Kerwin  v.  People,  96  111.206,  An  exhaustive  argument  for 
the  contrary  principle  is  found  in  20  Am.  L.  Eeg.  436,  497.  But  the 
power  of  the  legislature  in  this  particular  would  seem  too  clear  to  be 
successfully  resisted.  The  property  qualification  is  not  an  essential 
feature  of  the  institution  of  jury  trial,  and  therefore  may  be  modified  or 
wholly  dispensed  with.  Com.  v.  Dorsey,  103  Mass.  412;  State  v.  Wilson, 
48  N.  H.  398.  Legislatures  have  not  hesitated  to  do  this,  and  it  is 
believed  their  acts  in  this  respect  have  never  beeen  held  to  violate  the 
right  of  jury  trial.  There  are  many  incidents  of  the  right  besides  that 
of  the  qualification  of  the  jurors,  which  must  always  remain  under  the 
control  of  the  legislative  body.  It  cannot  be  denied  that  this  body  may 
enact  at  pleasure  methods  of  selecting,  summoning  and  forming  the 
panel,  which  differ  materially  from  the  common  law  practice.  Cases 
cited,  supra.  It  has  never  been  doubted  by  any  court  that  the  legisla- 
ture may  at  any  time  grant  peremptory  challenges  to  the  prosecution, 
increase  the  existing  number,  or  to  diminish  those  guaranteed  to  the 
accused  at  common  law.  State  v.  Hoyt,47  Conn.  518;  Stokes  v.  People, 
53  N.  Y.  164;  Com.  v.  Dorsey,  103  Mass.  412;  Jones  v.  State,  1  Ga.  610; 
AVarren  v.  Com.,  37  Pa.  St.  45;  State  v.  Ryan,  13  Minn.  370;  State  v. 
Wilson.  48  N.  H.  398;  Bowling  v.  State,  5  Smed.  &  M.  664.    In  brief, 


22  giALlFl CATIONS   Foi:  .lUUY  DUTY.  [CH.   II. 

such,  be  regarded  as  having  a  natural  right  to  serve  as  a. 
juror;  and,  as  we  have  seen,  the  constitutions  prescribe 
nothing  in  this  respect.  The  power,  therefore,  of  the  leg- 
ishiturc  to  prescribe  qualitications  within  reasonable  limits, 
seems  to  be  conceded.'  And,  where  <(ualifications  are  tixed 
by  the  constitution,  it  is  certainly  competent  for  the  legis- 
lature to  define  the  mode  of  ascertaining  such  qualifications."^ 
AVhere  the  constitution  provided  that  "all  the  qualified 
voters  of  each  county  shall  also  be  qualified  jurors  of  such 
county,"  the  legislature  were  not  at  liberty  to  prescribe  any 
other  qualification.  Under  such  a  provision,  a  person  called 
as  a  juror,  being  a  qualified  voter,  could  not  be  excluded 
because  not  a  freeholder  or  householder,  or  because  not 
upon  the  jury  list  prepared  by  the  county  authorities.'^ 

§  24.  Subject  to  an  Inhibition  against  impairing  the 
Right. — It  is  only  when  that  body,  by  an  unreasonable  exer- 
cise of  its  functions  in  this  matter,  impairs  the  right  of  trial 
by  jury,  that  its  acts  are  unconstitutional .  It  is  a  fundamental 
principle,  common  to  the  constitutions  of  the  several  States, 
that  "  the  right  of  trial  by  jury  shall  remain  inviolate."* 
In  view  of  these  provisions,  it  would  be  obviously  incompe- 
tent for  the  legislature  to  impose  so  many,  or  such  disqual- 

all  the  incidents  of  tlie  right  are  at  all  times  subject  to  the  control  of 
the  legislature.  ''  None  would  contend  at  this  day."  said  Mr.  Justice 
Thacher,  -'in  a  trial  of  a  writ  of  riglit,  for  the  extraordinary  jury, 
called  the  grand  assize,  composed  of  four  knights,  '  gut  with  swords,* 
and  who  chose  twelve  other  persons  to  be  joined  with  tliem."  Dowling 
V.  '^tate,  supra.  It  may  here  be  remarked,  that  dispensing  with  an  ex- 
isting qualification  is  an  entirely  different  matter  from  requiring  other 
qualitications  in  addition  to  those  in  existence  at  the  time  of  the  adop- 
tion of  a  constitution  preserving  the  riglit  of  trial  by  jury  inviolate.  It 
is  easy  to  conceive  that  thtJ  legislature,  by  an  extraordinarj'  exercise  of 
its  prerogative  in  this  respec  .  might  contlne  jury  service  to  a  number  sO' 
limited  as  measurably  to  impair  the  value  of  the  right,  Such  a  law 
would  doubtless  be  obnoxious  to  the  foregoing  constitutional  provision. 

iByrd  v.  State,!  How.  (Miss.)  1G3,  176. 

•^  Whitehead  v.  Wells,  29  Ark.  99. 

3  Maloy  V.  State,  33  Tex.  .599;  Wilson  v.  State,  35  Tex.  30.");  Brennau 
V.  State,  33  Tex.  266.    But,  contra,  see  Lester  v.  State,  2  Tex.  App.  432. 

••  See  the  provisions  set  out  at  length  in  Tliomp.  Charging  the  .Tuiy. 
§  25,  et  seq. 


§    25.]  UNDER  AMERICAN  CONSTITUTIONS.  23 

.  ifications,  as  would  restrict  the  number  eligible  to  jury  duty 
to  a  very  small  or  select  class  ;  for  this  would  sul)stantially 
impair  the  right  of  trial  by  jury  as  it  existed  at  common  law, 
— a  thing  which  the  foregoing  provisions  were  designed  to  in- 
hibit. Subject  to  this  general  reservation,  the  enumeration 
of  causes  of  disqualilication  has  generally  been  left  to  the 
legislature.^ 

§  25.  And  Subject  in  Some  Cases  to  Special  Checks 
and  Restrictions.  —  Checks,  however,  upon  the  power  of 
the  legislature,  are  found  in  the  constitutions  of  some 
of  the  States.  Thus  it  is  provided,  that  "  the  civil 
rights,  privileges,  or  capacities  of  any  citizen,  shall  in  no 
way  be  diminished  or  enlarged  on  account  of  his  religious 
principles,"-  and  also  that  "no  religious  or  political 
test  shall  ever  be  required  as  a  qualitication  for  jurors."^ 
Disqualilications  of  persons  convicted  of  "  bril)ery,  perjury, 
forgery,  or  other  high  crimes  and  misdemeanors,"  have 
been  provided  by  the  constitutions  of  some  of  the  States.^ 


^  Thus,  the  statutes  disqualify  those  convicted  of  scandalous  crime, 
or  guilty  of  gross  immorality.  Code  Va.  1873.  p.  1059,  §  4;  E.  S.  W. 
Va.  1879,  ch.  109,  §  8;  R.  S.  Ho.  Car.  1873,  p.  520.  §  9.  S^^e  also  R.  S. 
Wis.  1878,  §  2525;  Gen.  Laws  Oreg.  1872,  Civil  Code,  §  918;  Cal.  Code 
Civ.  Proc,  §  199;  Code  Ala.  1876,  §  4733;  Corap.  Laws  Utah.  1876, 
§  1073;  R.  S.  Tex.  1879,  §  3010;  Comp.  L.  Nev.  1873,  §  1051;  G.  S.Xeb. 
1873,  p.  642,  §  657;  Comp.  L.  Ariz.,  ch.  47,  §  10;  Gen.  Laws  Colo.  1877 
§  1460;  R.  C.  Miss.  1880,  §  1661;  R.  S.  Me.  1871,  ch.  106,  §  2. 

2  Const.  Ala.  1819,  Art.  I,  §  4;  Const.  Ala.  1865,  Art.  I,  §  4;  Const. 
Ala.  1875.  Art.  I,  §  4;  Const.  Ark.  1864,  Art.  II,  §  4;  Cal.  Const.  1870, 
Art.  IV,  §  9;  Const.  la.  1857,  Art.  I,  §  4;  Const.  la.  1846,  Art.  I.  §  4; 
Const.  Ky.  1799,  §  4;  Const.  Ky.  1850,  Art.  XIII,  §  6;  Const.  Kans. 
1857,  Art.  XV.  Bill  of  Rights,  §  4;  Const.  Tenn.  1870,  Art.  I,  §  0. 

3  Const.  Tenn.  1870,  Ai-t.  I,  §  6;  Const.  W.  Va.  1872,  Art.  IIL  §  11. 
The  above  provi.vion  as  to  a  political  test  was  probably  aimed  at  the  test 
oath  which  Congress  saw  lit  to  provide,  designed  to  purge  the  panel  of 
such  jurors  as  had  voluntarily  joined  in  the  late  rebellion.  See  §  821, 
of  the  Revised  Statutes.  The  act  was  passed  in  1862,  re^iealed  in  1871, 
and  re-enacted  in  1874.  See  Burt  v.  Panjaud,  99  U.  S.  180;  Atwood  v. 
Weems,  lb.  183.  This  section  of  the  Revised  Statutes  was  again  re- 
pealed b3'  the  act  of  -June  30,  1879.  See  Acts  of  Forty  Sixth  Congress, 
Sess.  I,  ch.  52. 

<  Const.  Ala.  1819,  Art.  VI,  §  5;  Const.  Tex.  187G.  Art.  XVI,  §  2;  Cal. 
Const.  1879,  Art.  XX,  §  11. 


24  QUALIFICATIONS  FOR  JURY  DUTY.  [CH.  II. 

§  2G.  Enumeration  of  Qualifications  prescribed  by 
Statute.  —  III  respect  of  citizenship,  the  statutes  of  iiuiny 
of  tiie  States  expressly  provide  that  the  juror  shall  be 
a  citizen  of  the  United  States,^  althoug:h,  doubtless,  in 
the  absence  of  such  a  provision,  an  alien  would  be  chal- 
lengeable now,  as  he  was  at  common  law.-  It  is  generall}'^ 
expressly  provided  that  they  shall  l)e  qualilied  voters  of 
the  State ;  ^  that  they  shall  be  free  from  all  legal  excep- 
tions, of  fair  character,  of  approved  integrity,  of  sound 
judgment,  well  informed,  and  the  like  ;^  and  neither  mentally 
uor  bodily  disabled.^     Many  of  the  statutes  require  a  qual- 

1  C:  1.  Code,  Civ.  Prac,  §  198;  K.  S.  Wis.  1878,  §  2524;  Comp.  L.  Arizona, 
ch.  47,  §  10;  Geu.  Laws  Colo.  1877,  §  1460;  Gen.  Laws  New  Mexico, 
1880,  p.  366;  X.  Y.  Code  Rem.  Jus.,  §  1027;  Gen.  Laws  Oreg.  1872. 
Civil  Code.  §  918;  G.  S.  R.  I.,  p.  36,  §  1;  Comp.  L.  Utah,  1876,  §  1073. 

2  Co.  Litt.  ir)6  b.;  Judson  v.  Eslava.  Minor  (Ala.)  3;  State  v.  Prim- 
rose, 3  Ala.  546;  Boyington  v.  State,  2  Port.  100. 

3R.  S.  Tex.  1879,  Art.  310;  Miller's  R.  C.  Iowa,  1880,  di.  10,  §  227; 
Comp.  L.  Xev.  1873,  §  1051 ;  Code  Va.  1873.  p.  1058,  §  1 ;  Comp.  L.  Kan. 
1879,  §  2964;  Bush  Dig.  Fla.,  ch.  104,  §  1;  R.  S.  Del.  1874,  ch.  109,  §  1; 
Ark.  Dig.,  1874,  §  3654;  Comp.  L.  Arizona,  ch.  47,  §  10;  R.  S.  Wis.  1878, 
§  2524;  Comp.  L.  Mich.  1871,  §  5978;  R.  S.  La.  1876,  §  2125;  G.  S.  Mass. 
1860,  ch.  132,  §  1;  R.  S.  Me.  1871,  ch.  106,  §  2;  Cal.  uode  Civ.  Proc, 
§  198;  G.  S.  R.  I.  1872.  p.  430,  §  1 ;  R.  S.  So.  Car.  1873,  p.  519,  §§  3,  6; 
2  Rev.  Ind.  1876,  p.  31. 

4X.  Y.  Code  Rem.  Jus.,  §  1027;  Cal.  Code  Civ.  Proc,  §  198;  R.  S. 
111.  1880,  ch.  78,  §  2;  Snpp.  to  Ga.  Code.  1873,  §  6.")4;  Bush  Dig.  Fla., 
ch.  104,  §  3;  G.  S.  Ky.  1879,  p.  573,  §  4;  Comp.  L.  Mich.  1871,  §  5978; 
Code  Ala.  1876,  §  4733;  R.  S.  Wis.  1878,  §  2530;  Ark.  Dig.  1874,  §  3669; 
Comp.  L.  Kan.  1879,  §  2964;  G.  S.  Xeb.  1873,  p.  642,  §  657;  G.  S.  R.  L 
1872,  p.  432,  §  14;  R.  C.  Miss.  1880,  §  16?!;  G.  S.  Ky.  1879.  p.  571,  §  2; 
R.  S.  So.  Car.  1873,  p.  519,  §§  3,  6;  Stat.  Tenn.  1871,  §  3990.  It  was 
held  not  erroneous  to  allow  a  juror  to  sit  in  a  case,  although  •'he  did 
not  read  the  newspapers  and  could  not  tell  what  age  he  was,"'  where  the 
statute  required  simply  that  jurors  should  be  "sober,  intelligent  and 
judicious  persons."  Com.  v.  Winnemoro,  1  Brewst.  356;  s.c.,2  Brewst. 
378.  '•  The  probi  et  legales  homines,  required  by  the  common  law  as  the 
qualification  of  jurors,  certainly  did  not  embrace,  as  an  essential,  the 
capacity  to  read;  for,  in  early  times,  but  few, even  in  the  highest  condi- 
tions, could  read."  Per  Thompson,  J.,  J6id,  p.  380.  See  also  AVhite  v. 
State,  .52  Miss.  216,  224;  American  Ins.  Co.  v.  Mahone,  50  Miss.  180; 
Citizens  Bank  v.  Strauss,  20  La.  An.  730;  State  v.  Lewis,  28  La.  An.  84; 
Campbell  v.  State.  48  Ga.  353. 

W  5  X.  Y.  Code  Rem.  Jus.,  §  1027;  R.  S.  111.  1880,  ch.  78,  §  2;  Comp.  L. 
Mich.  1871,  §  5978;  Comp.  L.  Arizona,  ch.   47,  §  10;  Code  Ga.  1873, 


§    26.]  UNDER  AMERICAN  STATUTES.  25 

ification  of  freehold,^  or  household  ;^  others,  that  the  juror 
shall  be  assessed  for  property  of  a  certain  amount.'^  All 
States,  it  is  believed,  require  jurors  to  be  at  least  twenty- 
one  years  of  age,  and  generally  they  are  not  selected  when 
above  sixty"*  or  seventy  years  of  age.'^  Of  course,  none 
ought  to  be  selected  who  are  incapable  of  understanding 
the  language  in  which  the  proceedings  are  conducted, 
and  some,  of  the  statutes  expressly  so  provide.**  Educa- 
tional qualifications  are  rare.^  The  Texas  Code  of  Crim- 
inal Procedure  ^  provides  as  one  of  the  challenges  for 
cause  "  that  he  [the  juror]  cannot  read  or  write."  ^  The 
last  editions  of  the  revised  statutes  of  several  of  the  States 
expressly  confine  the  selection  of  jurors  to  ivhite  citizens 
otherwise  qualified, ^"^  while  others  expressly  provide  that 
there  shall  be  no  disqualification  on  account  of  color." 


§§  3930,  3906;  Comp.  L.  Kan.  1879,  §  29G4;  G.  S.  Neb.  1873,  p.  642,  §  657; 
Comp.  L.  Utah,  1876,  §  1073;  Gen.  Laws  Oreg.  1872,  Civil  Code,  §  918; 
E.  S.  Tex.  1879,  Art.  3010. 

1  N.  Y.  Code  Rem.  Jus.,  §  1027;  R.  S.  Tex.  1879,  §  3010;  Stat.  Tenn. 
1871,  §  4002;  Gen.  Laws  Xew  Mexico,  ISSO,  p.  366;  2  Rev.  Ind.  1876,  p. 
31;  Code  Ala.  1876,  §4732. 

2  R.  S.  Tex.  1879,  §  3010;  Gen.  Laws  New  Mexico,  1880,  p.  366;  Stat. 
Tenn.  1871,  §  4002;  G.  S.  Ky.  1879,  p.  571,  §  2;  2  Rev.  Ind.  1870,  p.  31 ; 
Code  Ala.  1876,  §  4732. 

3  N.  Y.  Code  Rem.  Jns.,  §  1027 ;  Comp.  Laws  Utah,  1876,  §  1073 ;  Comp. 
L.  Kan.  1879,  §  2964;  Cal.  Code  Civ.  Proc,  §  198;  G.  S.  R.  L  1872,  p. 
36,  §  1;  R.  S.  Del.  1874,  ch.  109,  §  2;  Code  Ga.  1873,  §  3907;  Battle's 
Rev.  N.  C,  p.  194,  §  229  «. 

4  N.  Y.  Code  Rem.  Jus.,  §  1027;  Code  Va.  1873.  p.  1058.  §  1 ;  R.'  S.  W. 
Va.  1879,  ch.  109,  §  1;  Code  Ga.,  §§  3930,  3906;  Comp.  L.  Arizona,  ch. 
47,  §  10;  R.  C.  Miss.  1880.  §  1661;  R.  S.  111.  1880,  ch.  78,  §  2. 

5  R.  S.  Me.  1871,  ch.  106,  §  2.  In  New  Jersey,  sixty-five  years  is  the 
limit.     Rev.  N.  J.  1877,  p.  532,  §  6. 

6  Cal.  Code  Civ.  Proc,  §  198;  R.  S.  111.  1880,  ch.  78,  §  2;  Comp.  L. 
Mich.  1871. §  5978. 

^  Comp.  Laws  Utah.  1870,  p.  55. 
8  Art.  636,  subsec.  14. 

3  Qucerc,  whether  the  English  language  alone  is  referred  to  in  this 
provision?    Nolen  v.  State,  9  Tex.  App.  419. 

10  R.  S.  W.  Va.  1879,  ch.  109,  §  1;  G.  S.  Ky.  1879,  p.  571,  §  2;  G.  S. 
Neb.  1873,  p.  642,  §  657;  Gen.  Laws  Oreg.  1872,  §  918.  See  also  Rev. 
Code  Md.  1878,  p.  558,  §§  1  and  2. 

11  Stat.  Tenn.  1871,  §  4002  «;  R.  S.  La.  1876,  §  2125. 


26  QUALIFICATIONS  FOR  JURY  DUTY.  [fll.   II. 

§  21.  Statiit«'s  limiting;'  Jiii'.v  Duty  t<)  AVliite  Persons 
I'lK'oiistitutioiial.  —  A  .statute  reguhitini;  tlic  selection  of 
jurors,  and  conlininii;  th:it  selection  to  white  citizens,  is 
obnoxious  to  that  portion  of  the  foui'teenth  amendment 
to  the  Constitution  of  the  United  States,  which  provides 
that  "  no  State  shall  make  or  enforce  any  law  which  shall 
abridirc  the  privileges  or  immunities  of  citizens  of  the 
United  States  ;  nor  shall  any  State  deprive  an}^  person  of 
life,  liberty,  or  propert}',  without  due  [)rocess  of  law  ;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  i)rotec- 
tion  of  the  laws."  "  The  words  of  the  amendment,"  said 
Strong,  J.,  "  it  is  true,  are  prohibitory  ;  but  they  contain  ti 
necessary  implication  of  a  positive  immunity,  or  right,  most 
valuable  to  the  colored  race, — the  right  to  exemption  from 
unfriendly  legislation  against  them  distinctively  as  colored — 
exemption  from  legal  discriminations,  implying  inferiority 
in  civil  society,  lessening  the  security  of  their  enjoyment  of 
the  rights  which  others  enjoy,  and  discriminations  which 
are  steps  towards  reducing  them  to  the  condition  of  a  sub- 
ject race."  Therefore,  where  a  colored  man  was  convicted 
of  murder,  before  a  jury  selected  under  a  statute  of  West 
Virginia,  providing  that  "  all  white  male  persons  Avho  are 
twenty-one  years  of  age  shall  be  liable  to  serve  as  jurors, 
except,"^  etc.,  it  was  held  that  there  was  as  clearly 
a  denial  of  the  equal  protection  of  the  laws,  as  if  the  col- 
ored population,  being  in  the  majority,  had  passed  a  law 
denying  to  white  citizens  the  privilege  of  participating 
equally  with  the  blacks  in  the  administration  of  justice. - 

§  28.  Causes  for  this  Reason  removable  to  Federal 
Courts. —  This  was  held  to  be  a  case  proper  for  removal 
into  the  Federal  Circuit  Court,  under  that  section  of  the 
Revised  Statutes  of  the  United  States  designed  to  secure 
to  defendants  their  e(|ual  civil  rights.^ 

'  Laws  W.  V:i.  1872-3,  p.  102.' 

2  Strauder  v.  State,  100  U.  8.  303,  307;  s.  c,  10  Cent.  L.  J.  225;   (re- 
versing s.  c,  11  W.  Va.  745.)     Field  and  Clifford,  JJ.,  dissented. 

3  §  G41.     By  wliich  it  is  provided,  tliat,  "  Wlien  any  civil  suit  or  crim- 
inal prosecution  is  commenced  in  any  State  court,  for  any  cause  whatso- 


§    29.]  EXCLUSION  OF  COLORED  PERSONS.  -27 

§  29.  But  not  merely  because  Colored  Jiii'ors  liuAe 
been  Avronglully  excluded  from  the  Panel. —  In  another 
case,  decided  at  the  same  term,  where  it  appeared  that 
the  statute  regahiting  the  procuring  of  jurors,  in  no 
respect  showed  an  unhiwful  discrimination  against  col- 
ored citizens,  colored  defendants  were  held  not  to  be  en- 
titled to  demand  that  a  venire,  which  was  composed  entirely 
of  the  white  race,  be  so  moditied  as  to  allow  one-third  thereof 
to  be  composed  of  colored  men.^  "  It  is  a  right,"  said  Mr. 
Justice  Strong,  "  to  which  every  colored  man  is  entitled, 
that  in  the  selection  of  jurors  to  pass  upon  his  life,  liberty 
or  property,  there  shall  be  no  exclusion  of  his  race,  and 
no  discrimination  against  them  because  of  their  color.  But 
this  is  a  different  thing  from  the  right  Avhich,  it  is  asserted, 
was  denied  to  the  petitioners  by  the  State  court,  viz.,  a 
right  to  have  the  jury  composed  in  part  of  colored  men.  A 
mixed  jury  in  a  particular  case  is  not  essential  to  the  equal 
protection  of  the  laws,  and  the  right  to  it  is  not  given  by 
any  law  of  Virginia,  or  by  any  Federal  statute."  ^ 

ever,  against  any  person  who  is  denied,  or  cannot  enforce  in  tlie  judicial 
tribunals  of  the  State,  or  in  the  part  of  the  State  where  such  suit  or 
prosecution  is  pending,  any  right  secured  to  him  by  an}'  law  providing- 
for  the  equal  civil  rights  of  citizens  of  the  United  States,  or  of  all 
persons  within  the  jurisdiction  of  the  United  States,  or  against  any 
ofiicer,  civil  or  military,  or  other  person,  for  any  arrest,  or  imprisonment, 
or  other  trespasses  or  wrongs,  made  or  committed  bj'^  virtue  of,  or  under 
color  of  authority  derived  from  any  law  providing  for  equal  rights  as 
aforesaid,  or  for  refusing  to  do  any  act  on  the  ground  that  it  would  be 
inconsistent  with  such  law,  such  suit  or  prosecution  may,  upon  the  peti- 
tion of  such  defendant  tiled  in  said  State  court  at  any  time  before  the 
trial  or  final  hearing  of  the  cause,  stating  the  facts  and  verified  bj'  oath, 
be  remoTed,for  trial,  into  the  next  circuit  court  to  be  held  in  the  district 
where  it  is  pending.  Upon  the  filing  of  such  jjetition,  all  further  pro- 
ceedings in  the  State  courts  shall  cease,  and  shall  not  be  resumed  except 
as  hereinafter  provided."    *     *     * 

1  Virginia  v.  Kives,  100  U.  S.  313;  s.  c,  s^lh  nom.,  Be  Com.  Virginia. 
10  Cent.  L.  J.  229.  See  also  Williams  v.  State,  44  Tex.  34;  Nashville  v. 
Shepherd,  3  Baxt.  (Tenu.)  373. 

^  Ihid.,  100  U.  S.  323.  Justices  Fiekl  and  Clifford  concurred  in  the 
conclusion  reached  in  this  case,  viz.,  that  the  petitioners  be  returned  to 
the  officers  of  Virginia,  from  whose  custody  they  were  taken,  and  that 
the  prosecution  against  them  be  remanded  to  the  State  court.  They  did 
not,   however,  agree  with  all  the  views  expressed  by  the  court,  and 


2S  QUALIFICATIONS  FOR  JURY  DUTY.  [CH.  II. 

In  the  case  just  noticed,  the  petition  praying  for  a  re- 
moval of  the  case  to  the  Circuit  Court  of  the  United  States 
alleired,  that  the  grand  jury,  which  found  the  indictment 
against  them,  was  composed  exclusively  of  white  men  ; 
that  they  had  been  denied  trial  by  a  jury  composed  in  part 
of  competent  jurors  of  their  own  race  and  color  ;  that  their 
race  had,  in  their  county,  never  been  allowed  the  riffht  to 
8er\'o  as  jurors  in  civil  or  criminal  cases,  in  which  their  race 
had  been  in  any  way  interested.  Admitting  the  truth  of 
these  allegations,  the  court  held  that,  although  the  action 
of  the  State  officers  was  a  gross  violation  of  the  spirit  of  the 
State  laws,  as  well  as  of  the  act  of  Congress,  which  punishes 
such  discriminations,^  yet  this,  being  a  criminal  misuse  of 

therefore  Mr.  Justice  Field  dissented  at  length,  with  the  concurrence  of 
3Ii\  Justice  Clifford. 

^  Act  of  March  1st,  1875,  §  4;  18  Stat,  part  3,  336.  This  section  enacts 
that  "  no  citizen,  possessing  all  other  qualifications  which  are  or  may  be 
prescribed  bj'  law,  shall  be  disqualified  for  service  as  grand  or  petit 
juror  in  any  court  of  the  United  States,  or  of  any  State,  on  account 
of  race,  color,  or  previous  condition  of  servitude;  and  any  officer  or 
otlier  person,  charged  with  any  dutj'  in  the  selection  or  summoning  of 
jurors,  who  shall  exclude,  or  fail  to  summon  any  citizen  for  the  cause 
aforesaid,  shall,  on  conviction  thereof,  be  deemed  guilty  of  a  misde- 
meanor, and  be  fined  not  more  than  $5,000."'  The  constitutionality  of 
this  act  was  established  in  j^xj^ar^e  Virginia,  100  U.  S.  339,  (s.  c,  10  Cent. 
L.  J.  406.)  Petitions  were  presented  by  the  State  of  Virginia  and  one 
Coles,  praying  for  a  habeas  corpus,  and  for  the  discharge  of  said  Coles, 
a  judge  of  a  county  court  of  Virginia,  held  in  custody  under  an  indict- 
ment found  against  him  as  an  officer  charged  with  the  selection  of  juroi'S, 
for  excluding  citizens  of  African  race  and  black  color  from  the  jury 
lists,  contrarj^  to  the  statute.  Mr.  Justice  Strong,  wlio  delivered  the 
opinion  of  the  court,  was  very  clear  that,  under  the  fifth  section  of  the 
Fourteentli  Amendment,  the  legislation  in  question  was  appropriate  for 
enforcing  the  provisions  of  that  article;  it  could  not  be  said,  as  was 
alleged,  that  Coles,  in  selecting  the  jury  as  he  did,  was  performing  a 
judicial  act,  and  therefore  that  Congress  had  no  power  to  punish  him  for 
Ills  official  acts.  "Whether  the  act  done  by  him  was  judicial  or  not,  is 
to  be  determined  by  itsciiaracter,  and  notby  tlie  character  of  the  agent." 
flOO  U.  S.  348.)  But  even  if  the  selection  of  jurors  could  be  considered 
in  anj"  case  a  judicial  act,  the  i^etitioner  having  exceeded  his  authority, 
and  acted  in  direct  violation  of  the  spirit  of  the  State  statute,  his  act 
was  no  longer  judicial.  The  petitions  were  tlierefore  denied.  Mr. 
Justice  Field  dissented  at  length  witli  the  concurrence  of  Mr.  Justice 
Clifford.    See  also  the  Cases  of  the  County  Judges,  3  Hughe*,  576. 


§  30.]  EXCLUSION  OF  COLORED  PERSONS.  2i> 

the  State  law,  could  not  be  said  to  be  such  a  "  denial  or 
disability  to  enforce  in  the  judicial  tribunals  of  the  State 
the  rights  of  colored  men,  as  is  contemplated  by  the  removal 
act.^  Nor  does  this  act  embrace  a  case  in  which  a  right  is 
denied  by  judicial  action  during  the  trial,  or  by  discrimina- 
tion against  the  defendant,  in  the  sentence,  or  in  the  mode 
of  executing  the  sentence.  As  the  statute  authorizes  a  re- 
moval  of  the  case  only  before  trial,  and  not  after  a  trial 
has  commenced,  a  denial  of  right  by  the  judicial  tribunal 
itself  cannot  be  made  the  ground  of  a  removal  of  the  case, 
because  the  defendant  cannot  know  until  during  or  after  the 
trial,  that  the  equal  protection  of  the  laws  will  not  be  ex- 
tended to  him.  Therefore,  he  cannot  affirm  that  it  is 
denied,  or  that  he  cannot  enforce  it  in  the  judicial  tribunals 
of  the  State. 

§  30.  Remedy  l>y  Writ  of  Error  from  United  States 
Supreme  Court.  —  But  wrongs  of  the  character  pointed 
out  in  the  foregoing  case  are  not  remediless.  It  is  the 
duty  of  the  court,  when  such  charges  are  not  denied,  or 
are  supported  by  proof,  to  quash  the  indictment,  or  the 
panel  of  jurors  returned  for  the  trial.  If  the  trial  court 
refuses  to  do  this,  and  its  action  is  sustained  by  the  courts 
of  last  resort  in  the  State,  the  Supreme  Court  of  the 
United  States,  by  Avrit  of  error  to  the  State  court,  will  set 
aside  the  judgment  in  the  case,  as  well  as  the  order  deny- 
ing the  motion  to  quash. '^  Thus  it  is  apparent  that  §  641 
of  the  Revised  Statutes  refers  to  a  denial  of  rights  or 
an  inability  to  enforce  them,  resulting  from  the  constitu- 
tion or  laws  of  the  State,  rather  than  a  denial  through  the 
oppressive  execution  of  the  laws  by  State  officers,  or  a  par- 
tial administration  thereof  in  the  State  courts.  In  such 
cases,  the  rights  of  the  defendant  are  left  to  the  revisory 


1  Rev.  Stat.  U.  S.  §  641. 

2  Virginia  v.  Eives,  100  U.  S.  313,  322;  Neal  v.  State  (May,  1881),  re- 
ported in  12  Cent.  L.  J.  514,  and  23  Alb.  L.  J.  466.  Mr.  Chief  Justice 
Waite  dissented  in  tliis  case,  but  only  upon  the  ground  of  the  insuffi- 
ciency of  the  proof  offered  to  show  tlie  wrongful  exclusion  of  colored 
persons  in  tlie  selection  of  the  jurors.    Mr.  Justice  Field  also  dissented. 


30  QUALIFICATIONS  FOR  JURY  DUTY.  [cil.   II. 

l)u\vor  of  the  liiglier  courts  of  the  State,  and  ultimately  to 
the  review  of  the  Su[)reine  Court  of  the  United  States, 
Avhieh  power  this  court  may  exercise  over  the  judgments  of 
courts  of  the  several  States,  whenever  the  rights,  privileges 
or  immunities,  secured  by  the  constitution  or  laws  of  the 
United  States,  arc  withheld  or  violated. 

§  31.  Qiialific'ation  of  Jurors  in  the  Federal  Courts. 
—  The  qualification  of  jurors  in  the  Federal  courts  is  reg- 
ulated by  a  statute  passed  in  the  3'ear  1840,^  and  sub- 
stantially incorporated  into  the  Kevised  Statutes  of  the 
United  States  at  §  800.  This  statute  provides  that  "jur- 
ors, to  serve  in  courts  of  the  United  States,  in  each  State  re- 
spectively, shall  have  the  same  qualifications,  subject  to  the 
provisions  hereinafter  contained,  and  be  entitled  to  the 
same  exemptions,  as  jurors  in  the  highest  courts  of  law  in 
such  States  may  have."  Except  where  otherwise  specially 
provided  by  statute,  the  laws  of  the  several  States  relating 
to  the  qualitications  and  exemptions  of  jurors  are  as  bind- 
ing upon  the  Federal  courts  as  upon  the  tribunals  of  the 
particular  State. ^ 

1  o  Stat,  at  Large,  394. 

-  United  States  v.  Wilson,  6  McLean,  604;  United  States  v.  Gardner, 
1  Woods,  514,  519;  s.  c,  5  Chic.  Leg.  N.  501 ;  18  Int.  Rev.  Rcc.  46.  As 
to  the  manner  of  selecting  jurors  in  the  Federal  courts,  see  Chap.  IV, 
Art.  II. 


§  o4.]         EXEMPTIONS  FROM  JURY  DUTY.  31 


CHAPTER  III. 


OF  EXEMPTIONS  FROM  JURY  DUTY. 
:jECTION. 

3-t.  Exemptions  in  consideration  of  Public  Services. 

35.  Constitutionalit}^  of  tliese  Exemptions. 

36.  Persons  engaged  in  certain  Occupations  exempt. 

37.  But  only  while  actuallj^  so  engaged. 

38.  Honorary  Members  of  Public  Organizations  —  Assistant  Clerks. 

39.  Exemption  as  a  Vested  Right. 

(1.)  By  Prescription  in  England. 
(2.)  Exemption  a  Vested  Riglit  in  Missouri. 
(3.)  The     Sonndness     of    this  View    questioned  —  Contrary 
Decisions. 

40.  The  Privilege  of  Exemption  not  a  Ground  of  Challenge. 

§    34.   Exemptions  in  Consideration  of  Public  Services. 

—  It  is  quite  clear  that  certain  classes  of  citizens  ought 
to  be  exempt  from  jury  service.  For  example,  those 
who  already  owe  duties  to  the  public,  cannot  be  ex- 
pected to  discharge  them  faithfully,  and  at  the  same  time 
l)oar  this  additional  burden.^  Thus,  upon  general  principles, 
a  member  of  the  legislature  ought  to  be  excused  from  serv- 
ing as  a  juror,  wdiile  the  legislative  body  is  in  session.'"^ 
Statutes,  granting  exemption  from  jury  duty  in  consideration 
of  petty  public  services,  are  quite  common  in  this  country.^ 
Illustrations  of  exemptions  are  those  extended  to  the  mem- 

1  Piper's  Case,  2  Bro.  (Peun.)  59. 

2  Com.  V.  Walton,  17  Piclv.  403. 

''Under  its  constitutional  authority"  to  establish  post  offices,"'  Congress 
has  authority  to  exempt  postmasters  from  sei'vice  upon  juries  in  State 
courts.  "Were  the  exemption  given  as  a  personal  privilege,"  said  Gas- 
ton, J.,  "  it  would  present  a  different  inquiry.  But  we  do  not  so  regard 
it.""     State  v.  Williams.  1  Dev.  &  B.  372. 


32  EXEMPTIONS  FROM  JURY  DUTY.       [CH.  III. 

bers  of  incorporated  and  voluiilary  fire  companies,  and  of 
the  militia. 

§  35.  Constitutionality  of  these  Kxeniptions.  —  The 
constitutionality  of  such  statutes  has  l)ecn  doubted,  but 
they  have  been  generally  sustained  upon  the  ground  that, 
although  it  is  true,  as  a  general  proposition,  that  every 
citizen  ought  to  bear  an  equal  share  of  the  burdens  of  gov- 
ernment, it  is  also  true  that  the  legislature  must  be  the 
judge  of  what  is  a  fair  and  equal  distribution  of  these  bur- 
dens.^ Upon  the  same  principle  the  legislature  may  exempt, 
for  a  certain  interval,  one  who  has  already  served  as  a  juror 
in  federal  or  the  State  courts. - 

§  3(3.  Persons  engaged  in  certain  Occupations  exempt. 
—  The  exemption  generally  does  not  end  here.     On    the 

1  McGunnegle  v.  State.  6  Mo.3G7;  Ex  parte  Goodin,  G7  Mo.  637;  Bragg 
V.  People,  78  111.  328,  330;  Dunne  v.  People,  94  111.  120;  Cortelyou  v. 
VanBinndt.  1  Johns.  313;  State  v.  Whitford,  12  Ired.  L.  99;  E:r  parte 
House,  3G  Tex.  83;  Bloom  v.  State,  20  Ga.  443.  In  this  case  Lumpkin, 
J.,  intimated,  that  if  it  should  be  shown  that  the  exemptions  conferred 
in  any  case  were  so  general  as  to  impair  the  right  of  trial  by  jury,  it 
might  be  for  the  serious  consideration  of  the  court,  whether  such  a  law 
did  not  infringe  the  constitutional  provision  that  trial  by  jury  should  be 
as  heretofore,  and  remain  inviolate.  The  point,  however,  was  not  dis- 
cussed, as  the  record  presented  no  such  case.  There  are  old  authorities 
to  the  effect,  that  a  custom  to  be  exempt  from  serving  on  juries  is  void, 
where  there  are  not  a  suflicient  number  of  other  qualified  jurors  to  be 
had.  Kex.  V.  Clark,  1  Sid.  272;  Lady  Northumberland's  Case,  2  Mod. 
182;  Lofft,  214.  The  power  of  the  legislature  to  grant  exemptions  was 
sustained  to  a  doubtful  extent  in  State  v.  Cohn,  9  Nev.  179.  A  statute  of 
Nevada  authorizes  the  judges  of  the  several  district  courts  to  prescribe 
bounds  within  their  counties,  and  to  exempt  any  person  residing  within 
such  limits,  upon  proof  of  such  residence  and  payment  of  twenty-five 
dollars.  This  exemption  continues  "until  the  first  Monday  of  Januarj^ 
next  ensuing."  (Comp.  Laws  Xev.  1873,  §  1059;  Laws  Nev.  1875,  ch. 
81;  Laws  Nev.  1877,  ch.  107.)  The  court  admitted  that  the  exemption 
in  question  tended  to  impose  undue  jury  duty  upon  poor  men  in  one 
direction,  and  in  another  "  to  foster  and  encourage  that  most  baneful 
parasite  upon  the  body  politic — the  professional  juryman."  These, 
however,  the  court  considered  to  be  arguments  against  the  passage  of 
such  a  law,  rather  than  against  its  constitutionality,  which  was  accord- 
ingly upheld.  This  conclusion  hardly  merits  approval.  See  Proffatt  on 
Jury  Trial,  §  120,  note,  citing  Cooley  Const.  Lim.  390. 

2  Swan's  Case,  16  Mass.  220;  Ex.  parte  Brown,  8  Pick.  504;  Brewer  v. 
Tyringham,  14  Pick.  196. 


§   37.]  EXEMPTIONS  FROM  JURY  DUTY.  33 

contrary,  it  frequently  extends  to  very  numerous  classes 
of  citizens  whose  private  eniplo^^ments  are  such,  that  a 
sudden  demand  upon  them  to  perform  this  service  must 
almost  inevitiibly  result  in  serious  inconvenience  to  a  portion 
of  the  public,  or  considerable  pecuniary  loss  to  the  person 
whose  service  is  demanded.  A  fair  illustration  of  the 
classes  generally  exempt  is  found  in  the  section  relative  to 
this  subject  in  the  New  York  Code  of  Remedial  Justice.^ 
§  37.  But  only  wliile  actually  so  engaged. — It  will 
be  seen,  from  an  examination  of  this  provision  and  other 
statutes  conferring  similar  exemptions,  that  the  gratuity 
exists  only  during  actual  employment  or  service  in 
the  callings  indicated.  It  has  been  considered  that,  during 
an    intermission    of    duty,    an    officer   of   the  government 

1  §  1030.  The  classes  are  as  follows:  "  1.  A  clergyman  or  a  minister 
of  any  religion,  officiating  as  such,  and  not  following  any  other  calling. 
2.  A  resident  officer  of,  or  an  attendant,  assistant,  teacher,  or  other  per- 
son, actually  employed  in  a  State  asylum  for  lunatics,  idiots  or  habitual 
drunkards.  3.  The  agent  or  warden  of  a  State  prison;  the  keeper  of  a 
county  jail;  or  a  person  actually  employed  in  a  State  prison  or 
county  jail.  4.  A  practicing  physician  or  surgeon,  having  patients  re- 
quiring his  daily  attention.  5.  An  attorney  and  counsellor  at  law,  in 
actual  practice  as  such,  and  not  following  any  other  calling.  6.  A  pro- 
fessor or  teacher,  in  a  college  or  academy.  7.  A  person  actually  em- 
ployed in  a  glass,  cotton,  linen,  woolen,  or  iron  manufacturing  company, 
by  the  year,  month,  or  season.  8.  A  superintendent,  engineer,  or  col- 
lector, on  a  canal,  authorized  by  the  laws  of  this  State,  which  is  actually 
constructed  and  navigated.  9.  A  master,  engineer,  assistant-engineer, 
or  fireman,  actually  employed  upon  a  steam  vessel,  making  regular  trips. 
10.  A  superintendent,  conductor,  or  engineer,  employed  by  a  railroad 
company,  other  than  a  street  railroad  company;  or  an  operator,  or 
assistant  operator,  employed  by  a  telegraph  company;  who  is  actually 
doing  duty  in  an  office,  or  along  the  railroad  or  telegraph  line  of  the 
company,  by  which  he  is  employed.  11.  An  officer,  non-commissioned 
officer,  musician,  or  private,  of  the  national  guard  of  the  State,  perform- 
ing military  duty;  or  a  person,  who  has  been  honorably  discharged  from 
the  national  guard,  after  five  years'  service  in  either  capacity.  12.  A 
person  who  has  been  honorably  discharged  from  the  military  forces 
of    the  State,   after  seven  years'  faithful    service    therein.  *  * 

*  13.  A  member  of  a  fire  company,  or  fire  department,  duly  or- 
ganized according  to  the  laws  of  the  State,  and  performing  his  duties 
therein;  or  a  person  who,  after  faithfully  serving  five  successive  years  in 
such  afire  company,  or  fire  department,  has  been  honorably  discharged 
therefrom.    14.  A  person  otherwise  specially  exempted  by  law." 

(3) 


34  EXEMPTIONS  FUOM  JURY  DUTY.        [CH.  III. 

ought  not  to  claim  cxoniption  or  ask  to  ])c  excused  on  ac- 
count of  his  official  position.  As  was  observed  by  the  court 
in  the  case  of  a  lieutenant  of  the  United  States  Navy,  who, 
while  at  home  on  a  furlough,  was  summoned  to  serve  as  a 
juror,  "  the  defendant  was  not  in  actual  service,  so  that  his 
duty  to  the  United  States  could  not  conflict  with  his  duty 
as  a  juror."  ^  Judge  Gaston,  also,  thought  that  a  post- 
master, who  had  leisure  to  stand  about  a  court  room,  might 
be  summoned  as  a  talesman.-  And  it  has  been  so  held  in 
the  case  of  a  commissioner  of  navigation,^  and  of  a  mem- 
ber of  a  fire  company,^  both  of  whom  were  exempt  by 
statute.  But  an  attorney  at  law,  although  retired  from 
practice,  has  at  any  time  the  right  to  practice,  and  there- 
fore ought  to  be  held  exempt  under  a  statute  granting  ex- 
emption to  "  counsellors  and  attorneys  at  law."  * 

§  38.  Honorary  Members  of  Public  Organizations  — 
Assistant  Clerks.  —  An  exemption  granted  to  the  mem- 
bers of  any  organization  engaged  in  the  public  service, 
does  not  extend  to  honorary  members  of  such  bodies. 
In  such  cases,  the  actual  service  rendered  and  skill  ac- 
quired by  the  regular  members  is  the  foundation  of  the 
exemption.^  An  assistant  clerk  of  a  municipal  police  court 
is  exempt  under  a  statute  granting  the  privilege  to 
"  officers  "  of  the  several  courts  of  the  State. ^ 

§  39.  Exemption  as  a  Vested  Right. —  (1.)  By  Pre- 
scription'^n  England. —  The  earliest  case  touching  upon 
this  point  is  Hex  v.  Pugli^^  which  was  an  indictment 
against  the  defendant  as  high  constable  of  the  Hundred  of 
Battle,  for  not  obeying  a  warrant  of  the  justices  in  quarter 

1  State  V.  Ingraham,  Cheves  (S.  C.)  78,  80. 

2  State  V.  Williams,  1  Dev.  &  B.  372,  374. 

3  State  V.  Hogg,  2  Murph.  (N.  C.)  319. 
<  State  V.  Willard,  79  N.  C.  G60. 

8  Re  Swett,  20  Pick.  1.     See  also  1  Bun's  Trial,  374;  Cora.  v.  Buzzell, 
16  Pick.  153. 

6  Stewart  v.  State,  23  Ga.  181;  J?c  Scraiiton,  74  111.  161,  102.     But  see 
Albert  v.  White,  33  Md.  297. 

7  State  V.  Xewton,  28  La.  An.  65. 
» 1  Douff.  179. 


§   39.]  EXEMPTION  AS  A  VESTED  KIGHT.  35 

sessions,  commanding  him  to  issue  his  precepts  to  the  petty 
constables  and  others  for  the  purpose  of  preparing  lists  of 
persons  qualified  to  serve  on  juries,  etc.,  and  for  not  re- 
turning such  lists  to  the  justices  at  the  sessions  following. 
The  indictment,  having  been  removed  by  certiorari  from 
the  quarter  sessions,  was  tried  at  the  assizes.  The  case 
set  forth,  among  other  facts,  a  royal  charter  dating  from  the 
time  of  the  Conqueror,  confirmed  by  his  successors,  grant- 
ing various  immunities  and  privileges,  under  which  there 
had  grown  up  an  immemorial  custom,  that  the  residents 
within  the  hundred  should  not  be  returned  to  serve  on  ju- 
ries out  of  the  hundred  ;  and  that  no  precepts  had  ever  been 
issued  from  time  immemorial  by  the  constable  of  Battle. 
The  defendant  was  found  guilty,  subject  to  the  opinion  of 
the  court  upon  the  question  whether  the  above  charters  and 
immemorial  custom  would  exempt  the  inhabitants  from 
serving  on  juries,  and  the  high  constable  from  issuing  pre- 
cepts ;  or  whether  the  several  acts  of  parliament,  passed 
concerning  jurors,  had  not  taken  away  such  exemption. 
The  decision  turned,  not  upon  the  power  of  parliament  to 
annul  an  exemption  of  this  sort,  which  power  seems  to 
have  been  conceded,^  but  upon  the  form  of  the  various 
statutes  concerning  jurors,  which  were  held  not  to  have 
this  effect ;  and  a  verdict  of  acquittal  was  entered  for  the 
defendant. 

(2.)  Exemption  a  Vested  RiglU  in  Missouri. —  We  find 
established  in  Missouri,  upon  the  familiar  principle  of  Dart- 
raouth  College  v.  Woodward,'^  that  the  State  may  confer  a 

1  The  Stat.,  22  Hen.  VIII,  c.  5,  §  4,  in  relation  to  the  repair  of 
bridges,  conferred  authority  upon  the  justices  of  the  peace  and  cou- 
stables  >•'  to  tax  and  set  every  inhabitant  iu  every  sucli  city,  town,  or 
parish  within  the  limits  of  their  commissions  and  authorities,  to  such 
reasonable  aid  and  sum  of  money,  as  they  shall  think  by  their  discre- 
tions convenient  and  sutRcient  for  the  repairing,  re-edifying  and 
amendment  of  such  bridges."  Lord  Coke  considered  that  "  by  these 
words  [every  inhabitant]  all  privileges  of  exemptions  or  discharges 
whatsoever  from  contribution,  for  the  reparation  of  decayed  bridges  (if 
any  were),  are  taken  away,  although  the  exemption  were  by  act  of 
parliament."     2  Inst.  704. 

-  4  Wheat.  518. 


36  EXEMPTIONS  FKOM  JURY  DUTY.  [CH.   III. 

perpet  lal  exemption  which  subsequent  leirisiation  cannot 
take  away.  The  legishiture  of  Missouri,  in  1845,  granted 
a  charter  to  certain  persons  incorporating  a  l)odj  known  as 
the  "  Firewardens  of  the  City  of  St.  Louis."  This  char- 
ter exempted  the  members  of  this  body  from  service  upon 
juries  during  their  continuance  as  members.^  A  subsequent 
amendatory  act  -  provided  that  no  member  of  this  company 
should  be  compelled  to  do  duty  in  it  for  a  longer  period 
than  seven  years,  "  when  he  shall  be  entitled  to  receive 
from  the  president  and  secretary,  under  the  seal  of  the 
company,  a  certificate  that  he  has  served  as  a  fire  warden 
during  the  period  of  seven  years."  Another  section  pro- 
vided that  "no  person,  having  received  such  a  certificate, 
shall  be  compelled  to  sit  on  any  jury  within  the  State." 
By  a  later  act,^  all  laws  in  reference  to  exemption  from 
jury  duty,  in  conflict  with  the  general  jury  law  of  the 
State,  were  repealed.  In  one  case  it  was  held  that,  inas- 
much as  the  legislature  reserved  in  the  act  of  1845  a  power 
of  repeal,  a  certificate  of  seven  years'  service  conferred  no 
right  of  exemption  under  the  later  act  after  the  passage  of 
the  general  repealing  act.*  But  this  decision  was  overruled 
in  a  subsequent  case  by  a  higher  court. ^  "The  State," 
said  Sheravood,  C.  J.,  "  by  those  statutes  and  their  accept- 
ance by  the  petitioner,  entered  into  a  contract  which  was 
supported  by  a  valuable  consideration,  to  wit,  the  service  to 
be  rendered,  and  which,  when  rendered,  constituted  a  com- 
plete and  executed  contract,  which  the  State  by  subsequent 
legislation  was  pow^erless  to  annul  or  abrogate."  ^ 

1  Mo.  Laws,  1S45,  p.  114. 

2  Mo.  Laws,  1851,  p.  481. 

3  Mo.  Laws,  1877,  p.  280. 

*  Be  Powell,  5  Mo.  App.  220. 

»  Ex  parte  Goodin,  67  Mo.  637. 

*  Ibid.,  p.  638.  See  also  Ex  parte  House,  36  Tex.  83.  It  would  seem 
clear,  however,  in  the  absence  of  language  like  that  in  the  Missouri  act 
of  1851,  plainly  indicating  the  intention  of  the  legislature  to  confer  a 
perpetual  exemption  in  consideration  of  services  performed,  that  char- 
ters granting  to  members  of  fire  companies  the  exemption  in  question 
are  not  contracts  within  the  purview  of  the  Constitution  of  the  United 
States  (Art.  I,  §  10) ;  therefore,  in  the  wisdom  of  the  legislature,  no 


§  40.]    EXEMPTION  NOT  A  GROUND  OF  CHALLENGE.        37 

(3.)  The  Soundness  of  this  View  questioned — Contrary 
Decisions. —  But  the  wisdom  of  this  conclusion  may  be 
strongly  doubted.  The  fundamental  question  would  seem 
to  be,  are  the  duties  of  citizenship  a  subject  of  bargain  and 
sale?  If  exemption  from  one  class  of  duties  maybe  the 
subject  of  purchase,  so  exemption  from  any  and  all  such 
duties  may  be.  But  if,  for  example,  in  the  opinion  of  the 
legislature  the  public  exigencies  should  demand  military 
service  from  all  persons  capable  of  bearing  arms,  it  is  con- 
ceived that  a  privilege  of  exemption,  although  earned  ac- 
cording to  the  terms  of  an  act  of  a  prior  legislature,  could 
not  avail  against  such  a  call.^  In  the  opinion  of  the 
Supreme  Court  of  Illinois,  "  the  duty  of  serving  on  juries, 
like  the  duty  of  bearing  arms  in  defense  of  the  govern- 
ment, is  one  of  the  inseparable  incidents  of  citizenship, 
and  can  be  exacted  whenever  and  however  the  sovereign 
authority  shall  command.  All  exemptions  of  this  kind  are 
mere  gratuities  to  the  citizen,  which  cannot  be  the  subject 
of  contract  between  men  and  the  State,  and  may  be  with- 
drawn at  the  pleasure  of  the  law-making  power."  ^  There- 
fore, although  the  petitioner  in  the  case  noticed  had  earned 
his  exemption  by  seven  years'  service  in  the  fire  depart- 
ment, in  accordance  with  a  section  of  the  charter  of  the 
city  of  Chicago,  it  was  held  that  the  legislature  retained 
the  power  to  limit  such  exemption  to  members  of  the  fire 
department  engaged  in  active  service.'^ 

§  40.  The  Privilege  of  Exemption  not  a  Ground  of 
Challenge. —  The  privilege  of  exemption  is  generally  re- 
garded as  a  right  of  which  the  person  exempt  may  avail 
himself  or  not  at  his  pleasure.  Some  of  the  statutes  ex- 
pressly provide  that  it  shall  not  operate  as  a  cause  of  chal- 


ouly  may  such  exemption  be  revoked,  but  the  charter  itself  may  be 
amended.  Bloom  v.  State,  20  Ga.  443,  449;  Ex  parte  Rust,  43  Ga.  209; 
Cooley'e  Const.  Lim.  (1st  ed.)  383. 

1  Cooley's  Const.  Liin.  (1st  ed.)  383. 

2  Re  Scranton,  74,  111.  161,  162. 

3  See,  also,  Bragg  v.  People,  77  111.  328.     Such  is  the  law  of  Tennes- 
see.   Beamish  v.  State,  6  Baxter  (Tenn.)  .530. 


38  EXEMFTIONS  FROM  JURY  DUTY.  [cil.    III. 

longc.^  Tliis  is  apparent  also  from  the  tonus  of  other 
statutes  conferring  the  right,  as  where  it  is  enacted  that  the 
exempt  classes  shall  not  be  "compelled"  or  "liable"  to 
serve,  or  that  they  shall  be  "relieved"  of  such  duty.'^  It 
may  be  stated  as  a  general  rule,  that  in  the  absence  of  terms 
in  the  statutes  granting  the  exemptions,  amounting  to  a 
positive  pi'ohibition  or  creating  an  incapacity  for  jury  ser- 
vice, the  exempt  person  may,  when  called,  waive  the  priv- 
ilege conferred  by  law,  and  take  his  place  upon  the  jury, 
unless  otherwise  subject  to  challenge.^ 

1  Cal.  Penal  Code,  §  1075;  Conip.  L.  Ariz.,  ch.  11,  §  321;  Stat,  at  L. 
Minn.  1873,  p.  105G,  §  238;  Bullitt's  Ky.  Codes  (Cr.),  p.  42,  §  211;  R.  S. 
La.  187G,  §  2131;  Ark.  Dig.  Stat.  1874,  §  1914;  Miller  R.  C.  Iowa,  1880, 
§  2777;  R.  S.  111.  1880,  ch.  78,  §  14;  Comp.  L.  Nev.  1873,  §  1965;  Gen. 
Laws  Oreg.  1872  (Civil  Code),  §  186;  Laws  Utah,  1878  (Code  Cr.  Proc.,) 
§243. 

2  Bush  Dig.  Fla.,  ch.  104,  §  2;  R.  S.  Del.  1874,  ch.  109,  §  1;  Supp.  to 
Ga.  Code  of  1873,  §§  415,  41G,  417. 

3  Mulcahj'  V.  Reg.,  Irish  Rep.  1  C.  L.  12;  s.  c,  affirmed  in  L.  R.  3  H. 
L.  306;  State  v.  Forshner,  43  IS.  II.  89;  State  v.  Wright,  53  Me.  328; 
Moore  v.  Cass,  10  Kan.  288;  Davis  v.  People,  19  111.  74;  Murphy  v. 
People,  37  111.  447;  Chase  v.  People,  40  111.  352;  Davison  v.  People,  90 
HI.  221;  Edwards  v.  Farrar,  2  La.  An.  307;  Breeding  v.  State,  11  Tex. 
257;  Greer  v.  Norvill,  3  Hill  (S.  C.)  262;  Booth  v.  Com.,  16  Gratt.  519. 


§   43.]  SELECTION  OF  THE  JURY  LIST.  39 


CHAPTER   IV. 


OF  THE  SELECTION  OF  THE  JURY  LIST. 


Article  I. —  In  the  State  Courts. 

SECTION. 

43.  Scope  of  this  Chapter. 

44.  Selection  by  whom  made  at  Common  Law. 

45.  By  whom  made  under  American  Statutes. 

(1.)  Sheriff  excUided. 
(2.)  By  Judges  of  General  Elections. 
(3.)  By  Town  Officers. 
(4.)  By  Special  Boards. 
(5.)  By  Jury  Commissioners. 
(6.)  By  County  Courts. 
4G.    Penalty  for  Neglect  to  make  Selection. 

47.  Statutes  regulating  Selection  Directory. 

Article  II. —  In  the  Federal  Courts. 

48.  Under  Revised  Statutes,  §  800. 

49.  As  modified  by  the  Act  of  1879. 

50.  Rule  of  Court  Necessary  to  adopt  the  State  Practice. 

51.  Qualifications  and  Exemptions  the  same  as  in  the  State  Courts. 

52.  Mode  of  Selection  before  the  Act  of  1879. 

(1.)  Discretionary  Power  of  the  Court  over. 

(2.)  Made  by  the  Clerk  and  Marshal. 

(3.)  Upon  what  Advice  and  Information. 

(4.)  What  Number. 

(5.)  At  what  Time  drawn. 

(6.)  Marslial  had  not  Common  Law  Powers  of  Sheriff. 

53.  In  the  Territorial  Courts. 


§  43.  Scope  of  this  Chapter. —  It  is  the  purpose  of  tliis 
chapter  to  give  a  general  view  of  the  first  step  in  the  organ- 
ization of  a  jury,  as  practiced  in  the  United  States,  namely, 
the   selection,   from   the  general    public,   of  the   names   of 


40  SELECTION  OF  THE  JURY  LIST.  [CH.    IV. 

those  from  whom  the  panel  for  a  particular  term  or  terms 
of  court  is  to  1)0  drawn.  This  process  is  termed  the 
making  or  selection  of  the  oenerul  jury  list.  It  consists  of 
nothing  more  than  the  making,  by  the  officers  designated 
thereto  by  statute,  of  a  list  of  the  names  of  those  liable 
to  do  jury  duty  in  the  particular  county  or  jurisdiction 
within  a  given  period.  Errors  and  irregularities  in  the 
making  of  this  list  can  only  be  taken  advantage  of  by  chal- 
lenginir  the  panel  or  arra}-.  These  will,  therefore,  not  be 
discussed  in  detail  in  the  present  chapter ;  but  will  form  an 
article  in  the  chapter  on  "Challenge  to  the  Array." 

§  44.  Selection  by  whom  made  at  Common  Law. —  Ko 
trace  of  that  elaborate  system  provided  by  the  statutes  of 
the  several  States  for  the  selection  of  jurors  is  found  at 
common  law.  Under  the  English  practice,  jurors  have  al- 
ways been  named  in  the  discretion  of  some  person  ;  in  the 
case  of  oidinaiy  juries,  by  the  sheriff,  coroner,  or  elisors  ; 
in  the  case  of  special  juries,  before  the  statute  of  3  Geo.  II, 
c.  55,  by  an  officer  of  the  courts  —  a  practice  recognized 
and  confirmed  by  the  statute  in  general  terms.'  Under  this 
practice,  the  matter  of  selection,  which  is  usually  so  jeal- 
ously guarded  by  our  statutes  and  wholly  removed  from 
the  control  of  the  summoning  officer,^  had  no  existence  as 
a  distinct  step  in  the  process  of  procuring  juries.  The  offi- 
cer selected  at  the  same  time  he  summoned.  This  unbridled 
discretion,  vested  in  the  sheriff  and  his  subordinates,  natu- 
rally resulted  in  many  abuses,  not  only  in  the  packing  of 
juries,  but  also  in  the  oppression  of  the  community  at  large, 
by  too  frequent  demands  upon  the  same  persons  to  devote 
their  time  to  the  public  service  in  this  respect, — a  grievance 
measurably  obviated  l)}^  the  statutes  of  the  several  States. 
The  case  in  Cowper's  reports^  of  the  corrupt  summoning 
bailiff  w4io  was  attached  and  fined  .200  I.  for  demanding 
and  receiving^^mone}'  from  the  people  to  excuse  them  from 

iKex  V.  Edraiind^;,  4  Barn.  &  Aid.  471.  484. 

2  But  see  Code  Ala.  1876,   §§  4732.  1733;  E.  S.  La.  1876,  §  2127;  Rev. 
N.  J.  1877,  p.  532,  §  7. 
'  Rex  V.  Whitaker,  Cowp.  752. 


§   45.]  IN  THE  STATE  COURTS.  41 

serving,  and  for  summoning  such  as  refused  to  pay  him 
more  frequently  than  it  came  to  their  turn, — is  an  illustra- 
tion of  the  natural  outgrowth  of  the  informal  system  which 
prevailed  at  common  law. 

§  45.  By  Avhoiu  made  xinrtor  American  Statutes.^ — 
(1.)  Sheriff  Excluded. — A  substantial  uniformity  in  the 
method  of  selecting  is  apparent  in  the  statutes  of  the  sev- 
eral States.  Generally  the  sheriff  is  permitted  to  have  no 
hand  in  the  selection,  although  the  contrary  appears  to  be 
the  case  in  Alabama  and  Louisiana,^  while  in  New  Jersey 
the  selection  seems  to  be  relegated  to  this  officer  solel3^^ 
The  statutes  usually  specify  the  number  to  be  annually  se- 
lected in  each  county,  which  selection  is  made  by  town 
authorities,  county  courts,  county  commissioners,  or  other 
officers,  and  the  list  so  prepared  is  transmitted  to  the  clerk  of 
the  county  or  circuit  court,  where  it  is  filed,  and  the  names 
copied  upon  slips  of  paper  which  are  placed  in  the  jury  box 
ready  for  the  drawing.  The  systems  of  the  several  States 
will  be  briefly  noticed.* 

(2.)  Judges  of  General  Election. —  In  Iowa,  prior  to 
each  general  election,  the  county  auditor  apportions  to  each 
election  precinct  of  the  county  its  quota  of  jurors,  accord- 
ing to  the  vote  of  the  last  general  election.  The  sheriff  is 
required  to  notify  the  judges  of  election  at  each  precinct  of 
the  number  of  jurors  so  apportioned.     The  latter  make  the 

^  The  following  has  reference  only  to  such  laws  as  are  of  general  oper- 
ation throughout  the  States.  No  attempt  is  made  to  examine  the  jury 
laws  applicable  to  specific  cities  or  localities.  The  juries  in  many  of 
the  more  populous  cities  are  selected  under  such  laws.  See  N.  Y.  Code 
Rem.  Jus.,  §§  1079,  1126;  1  Bright.  Purd.  Ta.  Dig.  838,  §  83;  Sess.  Laws 
Mass.  1876.  oh.  207;  Sess.  Laws  Mo.  1879,  p.  28;  74  Ohio  Laws,  218;  78 
Ohio  Laws,  95,  135.  The  constitutionality  of  the  Ohio  statute,  first 
mentioned,  was  established  in  McGill  v.  State,  34  Ohio  St.  228. 

2  Code  Ala.  1876,  §§  4732,  4733;  R.  S.  La.  1876,  §  2127. 

8  Rev.  N.J.  1877,  p.  532.  §  7. 

^  The  right  of  trial  by  jury  is  not  violated  by  a  change  in  the  mode 
provided  by  law  for  the  selection  of  jurors,  although  such  may  have 
been  the  mode  at  the  time  of  the  adoption  of  a  constitutional  provision 
making  the  right  in  question  inviolate.  All  that  the  right  includes  is  a 
fair  and  impartial  jury.  The  particular  mode  of  designating  it  is  at  all 
times  witliin  the  control  of  the  legislature.       Perry  v.  State,  9  Wis.  19. 


42  SELECTION  OF  THE  JTRY  LIST.  [ciI  IV. 

selection,  and  rolurn  Ihc  list  with  the  returns  of  the  elec- 
tion, Tn  default  of  .sucii  selection  by  the  election  judges, 
it  is  made  b}-  the  count}^  canvassers  at  their  meeting  to  cast 
up  the  returns  of  the  judges.^  In  Ohio  the  selection  is  also 
made  on  the  occasion  of  the  general  election,  but  by  the 
trustees  of  each  township,  and  the  councilmen  of  each 
■ward,  who  deliver  their  lists  to  the  judge  of  election,  who 
returns  to  the  clerk  of  the  court  the  jioll  book  of  the  elec- 
tion. The  list  is  returned  at  the  same  time  with  such  poll 
book.-' 

(3.)  By  Town  Officers. —  In  the  New  England  States 
the  system  of  selection  differs  in  one  respect  from  that 
Avhich  generally  prevails,  the  selection  being  made  by  the 
town  authorities.  The  list  is  retained  by  the  town  or  city 
officers,  instead  of  being  transmitted  to  the  county  author- 
ities. In  Massachusetts  the  selection  is  annually  made  by 
the  selectmen  of  each  town,  who  post  up  the  list  ten  days 
before  each  town  meeting,  to  which  it  is  submitted  for  ap- 
proval. The  latter  body  is  authorized  by  vote  to  strike  out 
objectionable  names,  and  insert  others  in  their  stead. ^  In 
cities  the  list  is  prepared  by  the  mayor  and  aldermen.  It 
is  likewise  published  for  ten  days,  and  is  then  submitted  to 
the  common  council  for  their  revision.*  Substantially  the 
same  method  prevails  in  the  other  New  EngHnd  States.*^ 
In  New  York  the  selection  is  made  by  the  supervisor,  town 
clerk  and  assessors  of  each  town,  duplicate  lists  being  filed 
with  the  town  and  count}'  clerks.*"'  In  Kansas  the  trustee 
of  each  organized  township  and  the  mayor  of  each  city 
make  the  selection,  and  certify  the  result  to  the  clerk  of 
the  countyJ     fn  Wisconsin  the  supervisors  of  towns,  trus- 

1  Miller  K.  C.  Iowa,  1880,  §  234  rt  seq. 

2K.  S.  Ohio,  1880.  §    51(54. 

3  G.  S.  Mass.  1860,  cli.  1:52,  §  G  ct  seq. 

*  lb.  §  21. 

5See  G.  S.  Vt.  App.  1870,  p.  117.  §  80;  K.  S.  Me.  1871,  eh.  100,  §  1  ; 
G.  S.  N.  H.,  ch.  194,  §§  1  &  2;  G.  S.  Conn.  1875.  eh.  X,  §  1  ;  G.  S.  K.  I. 
1872,  p.  432,  §  14. 

6N.  Y.  Code  Rem.  Jus..  §  1035  etseq. 

'  Comp.  L.  Kan.  1870.  !j  2(503. 


§   45,]  IN  THE  STATE  COURTS.  43 

tees  of  villages,  and  the  aldermen  of  cities  perform  this 
duty,  certifying  the  result  to  the  county  clerk,  who  lays  the 
lists  before  the  county  board  to  aid  them  in  their  selection.^ 
In  Michigan  the  selection  is  made  by  the  assessors  and 
township  clerk  of  each  township,  and  the  assessor  and  al- 
derman of  each  ward  of  the  city  of  Detroit.^ 

(4.)  By  Special  Boards. —  In  several  of  the  States  the 
selection  is  confided  to  standing  boards  of  county  officers, 
such  as  the  supervisors  or  commissioners.^  In  others  the 
duty  is  performed  by  special  boards  composed  of  the 
sheriff,  judge  of  probate  and  clerk  of  circuit  court  ;*  the 
chairman  of  the  board  of  county  supervisors,  the  probate 
judge  and  the  clerk  of  the  district  court  f  the  county  clerk 
and  district  judge  f  the  treasurer,  auditor,  and  recorder  of 
the  county  ;^  the  ordinary  of  each  county,  together  with  the 
clerk  of  the  superior  court  and  three  commissioners  ap- 
pointed by  such  court  f  the  chairman  of  the  board  of 
county  commissioners,  the  county  auditor,  and  a  jury  com- 
missioner appointed  by  the  governor  f  the  clerk  of  the  dis- 
trict court  and  judge  of  probate  court  -^^  the  sheriff,  parish 
judge  and  clerk  of  the  district  court,  together  with  twa 
qualified  electors  ;"  the  judges  of  the  probate  and  district 
courts,  together  with  three  commissioners  appointed  by  the 
latter  ;^^  the  district  judge  and  two  commissioners.^^ 


1  R.  S.  Wis.  1878,  §  2526. 
2K.  S.  Mich.  1871,  §  5977. 

8  Gen.  Laws  Colo.  1877,  §  1462;  Cal.  Code  Civ.  Proc.  §  204;  Bush  Dig. 
Fla.,  ch.  104,  §  3;  Battle's  Rev.  N.  C.  p.  194,  §  229  a;  R.  S.  111.  1889,  ch. 
78,  §  1;  R.  S.  Wis.  1880,  §  1681;  Stat.  Minn,  at  L.  1873,  p.  221,  §  23,  cl 
seq;  R.  C.  Miss.  1880,  §  1681 ;  G.  S.  Neb.  1873,  p.  642,  §  658. 

*  Code  Ala.  1876,  §  4733. 
5  Conip.  L.  Ariz.,  ch.  47,  §  13. 
«  Comp.  L.  Nev.  1873,  §  1052. 
'  2Iud.  Rev.  1876,  p.  29,  §  1. 
«  Code  Ga.  1873,  §  3907. 

9  R.  S.  So.  Car.  1873,  p.  518,  §  1. 
1"  Comp.  L.  Utah,  1876,  p.  55. 

"  R.  S.  La.  1876,  §  2127. 

12  Gen.  Laws  New  Mexico,  1880,  ch.  OS,  §  1. 

13  I  Bright  Purd.  Dig.  p.  829,  §  2. 


44  SELECTION  OF  THE  JURY  LIST.  [ciI.   IV. 

(5.)  Bii  Jiu'ii  Commissionevs. —  In  some  of  the  States, 
as  we  have  just  seen,  eoniniissioners  are  si)ecially  a[)i)()inted 
to  act  with  the  county  otheers.  In  others  the  duty  is 
wholly  i)erfonncd  by  hoards  of  jury  coniinissioners,  as  in 
Kentucky,'  and  Texas. - 

(().)  By  Count ij  Courts. —  In  Delaware  the  "levy" 
oourt  makes  the  selection  -^  in  Virginia,'*  the  judge  of  the 
county  or  corporation  court;  in  Missouri,  Tennessee,  West 
Virginia  and  Oregon,  the  county  court.''  In  jVIaryland  the 
clerk  of  the  county  coniniissioners,  after  each  general  elec- 
tion, returns  to  the  clerk  of  the  circuit  court  a  list  of  the 
tax-payers  over  twenty-five  years  of  age.  From  this  list 
jind  from  the  poll  books  of  the  last  general  election,  the 
selection  is  made  bj-^  the  judge  of  the  circuit  court." 

§  4(5.  Penalty  for  Neglecting  to  make  Selection. — 
Where  the  dniy  of  selection  is  confided  to  ministerial  offi- 
cers, it  is  not  uncommon  to  enforce  its  performance 
hy  weighty  fines.  Thus,  the  Maryland  Code,  after  set- 
ting out  the  duties  of  the  clerk  of  the  county  com- 
missioners in  this  behalf,  enacts  that  "for  failure  to  per- 
form the  duty  hereby  imposed,  the  said  clerk  to  said 
•commissioners  shall  forfeit  and  pay  a  fine  to  the  State,  of 
not  less  than  five  hundred  dollars,  nor  more  than  one 
thousand  dollars,  in  the  discretion  of  the  court,  to  be  re- 
covered by  indictment  as  for  a  misdemeanor,  and  he  shall 
be  thenceforth  wholly  incapable  of  holding  or  exercising 
the  duties  of  the  said  clerk  to  the  county  commissioners."  ' 

§  47.  Statutes  Kegiilating"  Selection  Directory. —  An 
abundance  of  authorities  establish  the  proposition  that  a 
strict  compliance  with   the   statutory  provisions   as  to  the 

J  G.  S.  Ky.  1879.  p.  573,  §  4. 

2R.  S.  Tex.  1879.  Art.  3030. 

^R.  C.  Del.,  t'h.  109,  §  2. 

••  Code  Va.  1873,  p.  1059,  §  3. 

'-  R.  8.  Mo.  1879,  §  2784;  Stat.  Teun.  1871,  §  3981 ;  R.  8.  W.  Va.  1879, 
<4».  109.  §  7;  Gen.  Laws  Oreg.  1872.  Civil  Code,  §  921. 

«  R.  C.  Md.  1878,  Art.  62,  §  2. 

7  R.  C.  Md.  187G.  Art.  62,  §  1.  See,  also,  G.  S.  Ky.  1879,  p.  573,  §  2; 
•Gen.  Laws  Xew  Mexico,  ISSO,  ch.  68,  §§  8  and  9. 


§   47.]  IN  THE  STATE  COURTS.  45- 

time  and  mode  of  making  the  selection  is  unnecessary.' 
.Such  provisions  are,  in  general,  purely  directory.  Thus,  it 
is  not  a  material  irregularity  that  the  officers  charged  with 

1  Contrary  to  the  general  rule  is  a  decision  of  the  Supreme  Court  of 
Florida.  Gladden  v.  State,  13  Fla.  623.  It  was  here  held  to  be  a  good 
cause  of  challenge  to  the  array,  that  the  county  commissioners  had  fur- 
nished to  the  clerk  of  the  county  a  list  containing  the  names  of  three 
hundred  and  two  persons  qualified  as  jurors,  instead  of  three  hundred 
as  required  bj'  law,  from  which  the  jury  in  this  case  was  drawn.  The 
court  stated  tlie  rule  to  be  that,  "however  unimportant  the  discrepancy 
may  seem  to  be,  we  consider  that  the  appellant  had  a  right  to  demand  a 
strict  compliance  with  the  law  in  tlie  drawing  and  impanelling  of  a  jury. 
Irregularities  however  slight,  when  they  show  a  departure  from  the 
provisions  of  the  law  in  respect  to  the  selection,  summoning  and  im- 
panelling of  jurors,  are  proper  grounds  of  objection  to  the  juiy,  and 
form  grounds  of  challenge  to  the  array."  Ibid.  p.  626.  It  is  safe  to  say 
that  this  decision  is  destitute  of  support  in  recognized  legal  prin- 
ciples. Tlie  authority  of  an  eminent  writer  on  criminal  law  was  cited 
in  connection  with  the  foregoing.  Whart.  Cr.  L.,  3d  ed.,  1041.  Here 
we  read:  "Generally  speaking,  under  the  statutes,  the  mistake  or  in- 
formality of  the  officers  charged  with  summoning,  returning,  and  im- 
panelling the  jury  will  be  no  ground  for  a  new  trial,  unless  t^iere  has 
been  fraud  or  collusion,  or  material  injury  to  the  defendant."  This  is 
unquestionably  sound  law.  But  how  does  it  apply  to  the  case  under 
discussion?  Neither  fraud  nor  collusion  were  charged.  What  was  the 
possibility  of  "material  injui-y?"  None  that  can  be  conceived  by  the 
utmost  strain  of  the  imagination.  The  case  is  not  so  strong  as  that 
where  the  officers  have  failed  to  select  as  many  as  the  law  requires  for  a 
complete  list.  In  such  a  case  it  might  happen,  through  a  chain  of  im- 
probabilities that,  if  the  officers  had  filled  the  list,  one  or  more  of  the 
persons,  otherwise  omitted,  would  have  been  drawn  upon  the  panel  to 
serve  for  the  term  at  which  the  defendant  was  tried",  would  have  been 
summoned  so  to  attend;  would  have  obeyed  such  summons;  would  have 
been  impanelled  upon  the  jury  to  try  the  defendant,  and  would  have  dif- 
fered in  opinion  from  the  remainder  of  the  jurors,  believing  the  defend- 
ant not  guilt)'.  "These  contingencies,"  it  has  been  observed,  "reduce  the 
chances  of  harm  to  a  practical  nonentity,  and  justl}'  subject  the  alleged 
error  to  the  operation  of  the  maxim,  "  The  laio  careth  not  for  small  things.'''' 
Shankland,  P.  J.,  in  People  v.  Harriot,  3  Park.  Cr.  K.  112.  The  apology 
for  this  extended  notice  of  the  Florida  decision,  is  found  in  the  circum- 
stance that  it  seems  to  have  met  with  a  measure  of  approval  in  a  recent 
decision  of  another  eourt.  Harrison  v.  State,  3  Tex.  App.  558.  The  facts 
of  the  cases,  however,  were  not  similar.  Here  it  was  held  to  be  a  fatal 
objection  to  a  venire.,  that  it  directed  the  sunmiouing  of  seventy-five 
jurors,  while  the  statute  expressly  provided  that  the  number  should 
not  be  more  tlian  sixty.  But  the  correctness  of  this  decision  also  is 
questionable.     See  Dolan  v.  People,  64  N.  Y.  485,  493. 


46  SELECTION  OF  THE  JL'KV  LIST.  [CII.  IV. 

tluit  duty  did  not  coirectly  apportion  the  jurors  among  the 
respective  townships  of  the  county.^  So,  although  the 
statute  require  the  board  of  supervisors  of  the  town  and  the 
common  council  thereof  to  select  and  return  the  names  of 
qualitied  junn-s  before  a  certain  date,  yet  if  the  jurors  are 
properly  selected,  there  can  be  no  valid  objection  to  a  re- 
turn being  made  subsequent  to  the  time  fixed  by  the  stat- 
ute.'-^ There  are  limitations  upon  this  rule,  which  will  be 
stated  in  the  chapter  on  Challenges  to  the  Array. 


Article  II. — In  the  Federal  Courts. 

SECTION. 

48.  Under  R.  S.  §  800. 

49.  As  modified  by  the  Act  of  1879. 

50.  Rule  of  Court  Xecessary  to  adopt  the  State  Practice. 

51.  Qualifications  and  Exemptions  the  same  as  in  the  State  Courts. 

52.  Mode  of  Selection  before  the  Act  of  1879. 

(1.)  Discretionary  Power  of  the  Court  over. 

(2.)  Made  by  the  Clerk  and  Marshal. 

(3.)  Upon  what  Advice  and  Information. 

(4.)  What  Xumber. 

(5.)  At  what  Time  drawn. 

(6.)  Marshal  had  not  Common  Law  Powers  of  Sheriff. 

53.  In  the  Territorial  Courts. 

§  48.  Under  R.  S.  §  800. —  This,  except  as  prescribed 
in  a  recent  statute  hereafter  noticed,  is  regulated  by  an  act 
of  Congress  passed  in  the  year  1840,^  substantially  incorpo- 
rated in  §  800  of  the  Ke vised  Statutes.  The  latter  provides 
that  "  jurors,  to  serve  in  courts  of  the  United  States  in  each 
State  respectively,  shall  have  the  same  qualifications,  sub- 
ect  to  the  provisions  hereinafter  contained,  and  be  entitled 
to  the  same  exemptions,  as  jurors  of   the  highest  court  of 

1  Forsythe  v.  State,  G  Ohio,  19.  But  contra,  see  Clark  v.  Saline  Co..  9 
Neb.  51G. 

'  Burlingame  v.  Burlingame,  18  "Wis.  285;  Colt  v.  Eves,  12  Conn.  243; 
Thomas  v.  People,  39  Mich.  309.  Contra,  Buhol  v.  Boudousquie,  8 
M-art.  (N .  S.)  425. 

«  5  Stat,  at  Large,  394. 


§  49.]  IN  THE  FEDERAL  COURTS.  47 

lavv  in  such  Stiite  iiuiy  have  and  be  entitled  to  at  the  time 
when  such  jurors  for  service  in  the  courts  of  the  United 
States  are  summoned  ;  and  they  shall  be  designated  by  bal- 
lot, lot  or  otherwise,  according  to  the  mode  of  forming 
such  juries  then  practiced  in  such  State  court,  so  far  as  such 
mode  may  be  practicable  by  the  courts  of  the  United  States 
or  the  officers  thereof.  And  for  this  purpose  the  said 
courts  may,  by  rule  or  order,  conform  the  designation  and 
impanelling  of  juries,  in  substance,  to  the  laws  and  usages 
relating  to  jurors  in  the  State  courts,  from  time  to  time  in 
force  in  such  State.  [This  section  shall  not  apply  to  ju- 
ries to  serve  in  the  courts  of  the  United  States  in  Pennsyl- 
vania. ]:i"  ^ 

§  49.  As  nioclified  by  the  Act  of  1879. —  A  recent  act  of 
Congress,-  after  repealing  certain  sections  of  the  Revised 
Statutes,^  provides  that  "  all  such  jurors,  grand  and  petit, 
including  those  summoned  during  the  session  of  the  court, 
shall  be  publicly  drawn  from  a  box  containing,  at  the  time 
of  each  drawing,  the  names  of  not  less  than  three  hundred 
persons,  possessing  the  qualifications  prescribed  in  section 
eight  hundred  of  the  Revised  Statutes,  which  names  shall 
have  been  placed  therein  by  the  clerk  of  such  court  and  a 
commissioner,  to  be  appointed  by  the  judge  thereof,  which 
commissioner  shall  be  a  citizen  of  good  standino;,  residino- 
in  the  district  in  which  such  court  is  held,  and  a  well  known 
member  of  the  principal  political  party  in  the  district  in 
which  the  court  is  held,  opposing  that  to  which  the  clerk 
may  belong ;  the  clerk  and  said  commissioner  each  to  place 
one  name  in  said  box  alternately,  without  reference  to  party 
affiliations,  until  she  whole  number  required  shall  be  placed 
therein.  But  nolhinsi;  herein  contained  shall  be  construed  to 
prevent  any  judg'i  from  ordering  the  names  of  jurors  to  be 
drawn  from  the  boxes  used  by  the  State  authorities  in  select- 

1  The  clause  within  brackets  was  repealed  by  §  2  of  the  act  of  June 
30,  1879.    See  Laws  U.  S.  1870  (Sess.  I),  eh.  52. 

2  Sec.  2  of  the  act  of  Jime  30,  1879;  Laws  U.  S.  1879,  (Sess.  I.)  ch.  52. 
21  Stat,  at  Large,  43. 

3  Sees.  801,  820,  821,  and  the  flnal  clause  of  §  800. 


48  SELECTION  OF  THE  JURY  LIST.  [CH.   IV. 

ing  jurors  in  the  highest  courts  of  the  State  :  and  no  person 
shall  serve  as  a  petit  juror  more  than  one  term  in  any  one 
year;  and  all  juries  to  serve  in  courts  after  the  passage  of 
this  act  shall  be  drawn  in  conformity  herewith  :  Providedy 
that  no  citizen,  possessing  all  other  qualifications  which  are 
or  may  be  prescribed  by  law,  shall  be  dis(]ualified  for  ser- 
vice as  grand  or  i)etit  juror  in  any  court  of  the  United 
States  on  account  of  race,  color,  or  previous  condition  of 
servitude." 

§  50.  Rule  of  Court  Xccossary  to  adopt  the  State  Prac- 
tice.—  Section  800,  it  will  be  noticed,  provides  that  the 
federal  courts  "  may,  by  rule  or  order,  conform  the  desig- 
nation and  impanelling  of  juries,  in  substance,  to  the  laws 
and  usajxcs  relatini>:  to  iurors  in  the  State  courts,"  etc. 
Under  this  clause  it  was  held  that  the  practice  of  the  State 
courts  in  relation  to  the  summoning  of  jurors,  whether  stat- 
utory or  otherwise,  did  not  become  the  practice  of  the 
United  States  courts  until  expressly  adopted  by  the  latter.^ 
For  the  same  reason,  the  State  practice  having  been  adopted 
by  rule  of  court,  jurors  were  held  to  have  been  lawfully 
summoned  under  that  rule,  after  a  change  had  been  wrought 
by  statute  in  the  State  practice  which  had  been  adopted. 
The  amendatory  legislation  could  have  ho  effect,  until 
adopted  by  rule  of  court.^ 

§  51.  Qualifications  and  Exemptions  the  same  as  in  the 
State  Courts. —  So  far  as  qualifications  and  exemptions  are 
concerned,  the  laws  of  the  several  States  are  as  strictly 
binding  upon  the  Federal  courts  as  upon  the  tribunals  of 
the  State.  In  this  matter,  therefore,  the  former  have  no 
discretion.^ 

§  52.  Mode  of  Selection  before  the  Act  of  1879. — (1.) 
Discretionary  Power  of  the  Court  over. —  But  so  far  as 
concerns  the  mode  of  selection,  the  Federal  courts  were, 
before  the  act  of  1879,  vested  with  an  exceedingly  broad 

1  Alston  V.  Manning,  Chase's  Dec.  460. 

2  Ihid. 

3  United  States  v.  Wilson,  6  McLean,  004;  United  States  v.  Gardner, 
1  Woods,  514,  519;  s.  c,  5  Cli.  Leg.  N.  501  ;  18  Int.  Rev.  Rec.  46. 


§   52.]  IN  THE  FEDERAL  COURTS.  49 

discretion.  Literal  conformity  was  not  required  by  the 
statute,  and  in  fact  would  have  been  impossible,  as  tiiese 
courts  were  not  possessed  of  the  machinery  indicated  by 
the  statutes  of  the  several  States  for  this  purpose.  Resort 
could  not  be  had  to  the  means  provided  by  the  States,  as 
this  would  have  placed  the  courts  of  the  United  States  in 
an  anomalous  position  of  dependency  upon  State  officers 
over  whom  they  had  no  supervision  or  control.^  The 
selection  was  necessarily  made  by  officers  of  the  court. 
Substantial  conformity  to  the  statutes  of  the  States  was 
alone  demanded  ;  ^  and  whether  this  had  been  secured  must, 
it  was  held,  in  each  case  be  judged  by  what  was  practicable. 
This,  as  stated  by  "Woodruff,  J.,  necessarily  depended 
upon,  "1.  What  Congress  have  furnished  the  court  with 
the  means  of  effecting;  2.  What  the  court  has  power  to 
effect;  3,  What  can  reasonably  be  done,  in  consistency 
with  the  due  discharge  of  other  duties  imposed  upon  the 
court  and  its  officers."  '^ 

(2.)  Made  hy  the  Clerk  and  Marshal. —  The  court  could 
not  be  called  upon  to  organize  a  board  of  commissioners  to 
make  the  selection,  similar  to  that  existing  in  some  of  the 
States  ;  because,  in  the  first  place,  it  was  without  power  to 
create  such  a  board,  and  confer  the  powers  usually  pos- 
sessed ;  moreover.  Congress  had  provided  no  fund  for  the 
payment  of  such  a  body.  Resort  was  therefore  had  to 
the  permanent  officers  of  the  court,  the  clerk  and  the  mar- 
shal, with  such  assistance  as  could  be  conveniently  pro- 
cured.* 

1  United  States  v.  Collins,  1  Woods,  498,  503;  United  States  v.  Tall- 
man,  10  Blatchf .  21 ;  United  States  v.  Gardner,  supra. 

2  United  States  v.  Tallman,  10  Blatchf.  21;  United  States  v.  Wilson,  6 
McLean,  C04;  United  States  v.  Collins,  1  Woods,  499;  United  States  v. 
Gardner,  sxipra. 

3  United  States  v.  Tallman,  supra. 

*  United  States  v.  Tallman,  supra;  United  States  v.  Woodruff,  4  Mc- 
Lean, 105;  United  States  v.  Collins,  1  Woods,  499:  Rich  v.  Campbell. 
lb.  509.  "  All  tliat  is  recluired,"  said  Mr.  Justice  Bradley,  "  is  that  the 
mode  of  designating  and  impanelling  shall  be  substantially  the  same; 
not  that  the  officers  to  caiTy  it  into  effect  shall  be  the  same  either  in 
rmk  or  in  number;  nor  that  the  same  kind  of  jury  boxes,  or  material 

(4) 


50  SELECTION  OF  THE  JURY  LIST.  [cH.   IV. 

(3.)  Upon  irhac  Advice  and  Information. —  The  ;  elec- 
tion was  entirely  independent  of  that  made  by  the  State's 
officers.  Being  within  the  discretion  of  officers  of  the 
c'onrt,  with  due  regard  to  the  quuliHcations  prescribed  by 
law,  it  was  quite  possible,  but  nevertheless  perfectly  regu- 
lar, that  the  list  of  jurors  selected  might  contain  a  very 
considerable  number  of  names  not  found  in  the  lists  pre- 
pared by  the  State  authorities.^  In  the  performance  of 
such  duty  the  officers  of  the  court  were  at  liberty  to  take 
the  advice  of  well  informed  persons  as  to  who  were  best 
qualified  to  serve  as  jurors.  The  latter  did  not  act  offi- 
cially, but  in  a  purely  advisory  capacity.  Thus,  it  was^ 
proper  to  write  to  a  postmaster  requesting  him  to  forward 
names  of  qualified  jurors  of  his  count}^  Such  names, 
having  been  canvassed  by  the  officers  of  the  court,  were 
properly  included  in  the  official  list.^ 

(4.)  Wliat  Number. —  The  number  of  names  to  be  se- 
lected might  be  fixed  by  order  of  court.  It  needed  not  to 
correspond  to  that  fixed  by  the  statutes  of  the  State  for 
any  one  or  more  counties.  This  was  within  the  discretion 
of  the  court  and  uncontrolled  by  any  provision  of  the  Re- 
vised Statutes.^  Nor  were  courts  of  the  United  States 
bound  by  the  number  directed  by  the  laws  of  any  State  to 
be  summoned  upon  a  venire.  Upon  this  point,  unless  re- 
stricted by  acts  of  Congress,  they  were  governed  by  the 
common  law.* 

(5.)  At  what  Time  Draion. —  Identity  of  time,  within 
which  the  drawing  should  be  made,  was  not  a  matter  essen- 
tial to  a  substantial  compliance  with  the  mode   adopted  hy 

of  which  the  boxes  are  composed,  whether  wood  or  iron,  shall  be  tiie 
same;  nor  that  they  shall  be  kept  and  guarded  in  tlie  same  manner, 
nor  that  the  same  number  of  names  shall  be  placed  in  the  box;  nor  that 
in  any  other  matter  of  detail,  a  minute  imitation  of  the  State  practice 
is  to  be  observed."     United  States  v.  Collins,  1  Woods,  499,  504. 

1  United  States  v.  Collins,  1  Woods,  499;  Rich  v.  Campbell,  lb.  .W); 
United  States  v.  Gardner,  lb.  514. 

-  Rich  V.  Campbell,  supra. 

3  United  States  v.  Collins,  and  United  States  v.  Gardner,  supra. 

*  United  States  v.  Dow,  Taney  Dec.  34;  United  States  v.  Insurgeuts» 
2  Dall.  335,  341 :  United  States  v.  Fries,  3  Dall.  515. 


52.]  IN  THE  FEDERAL  COURTS.  51 

the  State.  In  one  case  Mr.  Justice  Bradley  held  that 
where  the  drawing  was  made  by  the  marshal  and  clerk, 
within  thirty  days  after  each  term,  and  not  as  in  the  State 
court,  on  the  last  day  of  term  in  open  court,  this  went  only 
to  a  matter  of  practice  and  detail,  and  not  to  the  sub- 
stantial mode  of  designating  or  impanelling  juries  in  the 
respects  demanded  by  the  act  of  Congress.^ 

(6.)  MarsJial  had  not  Common  Law  Powers  of  Sheriff. 
— But  w^here  the  State  law  provided  for  the  selection  of 
jurors  by  a  board  of  county  commissioners,  from  which 
selection  jurors  were  to  be  drawn  as  needed  for  service,  it 
is  obvious  that  a  rule  of  the  Federal  court  for  such  State, 
which  gave  to  the  marshal  of  the  court  the  same  arbitrary 
power  in  the  selection  of  each  panel  as  possessed  by  the 
sheriff  at  common  law,  did  not  conform  to  the  State  prac- 
tice, as  required  by  the  foregoing  section.^ 

§  53.  In  the  Territorial  Courts.  —  By  a  section  of  the 
Revised  Statutes  of  the  United  States,^  each  of  the  district 
courts  of  territories  previously  named  *  have  and  exercise 
the  same  jurisdiction  in  all  cases  arising  under  the  consti- 
tution and  laws  of  the  United  States,  as  is  vested  in  the 
circuit  and  district  courts  of  the  United  States.  But  this 
jurisdiction  does  not  make  these  courts  circuit  and  district 
courts  of  the  United  States.^  Jurors,  therefore,  for  the 
trial  of  such  causes  must  be  summoned  under  the  laws  of 
the  territory  in  this  behalf.''  The  power  to  select  and 
summon  jurors,  although  not  given  by  statute,  exists  by  force 
of  the  common  law.  Therefore,  in  the  absence  of  a  statutory 
regulation,  such  courts,  when  sitting  for  the  trial  of  cases 
before  mentioned,  may  cause  jurors  to  be  summoned  from 

1  United  States  v.  Collins,  supra. 

2  United  States  v.  Woodruff,  4  McLean,  105. 

3  §  1910. 

■•  §1909,  New  Mexico,  Utah,  Dakota,  Arizona,  Idaho,  Montana  and 
Wyoming. 

^  Per  Mr.  Chief  Justice  Waite  in  Rej'nolds  v.  United  States,  98  U.  S.  145, 
154,  citing  American  Ins.  Co.  v.  Canter,  1  Pet.  511;  Benner  v.  Porter,  9 
How.  235;  Clinton  v.  Englebrecht,  13  Wall.  434. 

«  Clinton  v.  Englebrecht,  13  Wall.  434,  448;  Hornbuckle  v.  Toombs,  IS 
Wall.  648;  Reynolds  v.  United  States,  supra. 


52  SELECTION  OF  THE  JURY  LIST,  [CH.  IV. 

the  body  of  the  district,  under  an  open  venire  directed  to 
the  marshal  of  the  territory.^  Obviously,  on  the  trial  of  a 
case  not  arising  under  the  laws  of  the  United  States,  the 
jury  must  be  summoned  according  to  the  law  of  the  ter- 
ritory. The  summoning  of  a  jury  according  to  the 
provisions  of  an  act  of  Congress  regulating  the  procuring 
of  juries  for  the  Federal  courts  is  not  good  as  against  a 
challenge  to  the  array  for  this  informality.- 

'  Beery  v.  United  States,  2  Colo.  18G. 
2  Clinton  v.  Englebiecht,  13  Wall.  4:54. 


§55.]  DRAWING  THE  PANEL.  53 


CHAPTER   V. 


or    THE    DRAWING    OF    THE    PANEL. 

SECTION. 

.55.  The  Usual  Method  statetl. 

56.  The  New  York  Method  stated  by  Way  of  Illustration. 

57.  Continued  —  The  Drawing  Proper,  how  conducted. 

58.  System  in  Xew  Jersey  —  Extraordinary  Power  of  the  Sheriff. 
.59.  System  in  New  England. 

60.  Penalty  for  Neglect  to  make  the  Drawing. 

Gl.  Certificate  of  Officers  to  Drawing. 

62.  List  of  Jurors  drawn  made  Public. 

(]?>.  General  Views  with  regard  to  Irregularities  in  Drawing. 

§  55.  The  Usual  Method  stated. — The  striking  uui- 
formity  in  the  method  of  drawing  jurors  as  practiced  in  the 
several  States  renders  unnecessary  any  discussion  of  the 
statutes  in  detail.  The  county  clerk  or  other  officer,  on  re- 
ceiving the  list,  selected  as  described  in  the  preceding  sec- 
tions, files  tlie  same  in  his  office,  and  writes  down  the 
names  contained  in  such  list  on  separate  pieces  of  paper,  of 
the  same  size  and  appearance,  or  as  nearly  as  may  be,  fold- 
ing up  each  of  such  pieces  so  as  to  conceal  the  name 
thereon,  and  deposits  them  in  what  is  generally  known  as 
"the  juiy  box."  In  Pennsylvania  a  wheel  is  used  instead 
of  a  box,  whicli  is  carefully  locked  and  sealed  with  the  in- 
dividual seals  of  the  jury  commissioners,  the  key  being 
kept  by  the  sheriff.  The  time  for  drawing  is  generally 
prescribed  by  statute,  a  certain  number  of  days  before  the 
first  day  of  the  term  at  which  the  jurors  are  to  serve, 
although  in  some  States  the  drawing  takes  place  upon  the 
order  of  the  judge  of  the  court  for  which  the  jurors  are 


54  DKAWINC;   TJIK  PANEL.  [CH.   V. 

ihawM.  The  drawing  is  usually  conducted  l)y  a  county  offi- 
cer, the  county  clerk  or  clerk  of  the  court,  who  calls  to  his 
assistance  certain  officers  as  i)rescribcd  by  law.  The  num- 
ber to  be  drawn  is  limited  hy  statute  or  subject  to  the  order 
of  the  court.  The  provisions  of  the  New  York  Code  of 
Kemedial  Justice  afford  a  fair  illustration  of  the  prelim- 
inaries of  a  drawing,  and  the  drawing  proper  as  practiced  in 
other  States,  with  the  exception  of  those  in  New  England, 
which  will  be  presently  noticed.  In  some  of  the  States 
jurors  are  drawn  for  each  week  of  the  term.  A  juror, 
however,  who  has  served  the  week  for  which  he  is  drawn, 
is  not  disqualified  for  further  service  during  the  term.  At 
the  most  the  statute  confers  only  an  -exemption  which  may 
be  waived  by  the  juror.' 

§  56.  The  New  York  Method  stated  hy  Way  of  Illus- 
tration.—  On  a  day  designated  by  the  county  clerk,  not 
less  than  fourteen,  nor  more  than  twenty  days  before  the 
day  appointed  for  the  holding  of  the  court  for  which  the 
jurors  are  drawn,  this  officer  must  draw  the  names  of 
thirty-six  persons,  and  any  additional  number  ordered  ac- 
cording to  law,  to  serve  as  trial  jurors  at  the  term.'^  At 
least  six  days  before  the  drawing,  the  county  clerk  must 
publish  a  notice  thereof  in  a  newspaper  of  the  county  ;  or, 
if  there  is  none,  he  must  affix  a  notice  thereof  on  the  outer 
door  of  the  building  where  the  term  for  which  the  jurors 
are  to  be  drawn  is  appointed  to  be  held.  Three  days  be- 
fore the  drawing  he  must  notify  the  following  officers  to 
attend, —  the  sheriff  of  the  county,  the  county  judge  or  the 
special  county  judge,  or  a  justice  of  the  sessions.^  The 
attendance  of  these  officers  is  required,  although  the  sheriff 
ma}'  send  his  under-officer.'*  The  drawing  must  be  ad- 
journed until  the  next  day,  if  the  officers  fail  to  attend. 
The  county  clerk  notifies  two  justices  of  the  peace  to  attend 
the  adjourned  drawing.     If  the  sheriff  or  under-sheriif  and 

1  McAfee  v.  State,  31  Ga.  411. 

2  New  York  Code  Rem.  Jus..  §  1042. 
«  lb.,  §  1043. 

*  Ih..  §  1044. 


§    58.]  UNDER  NEW  YORK  STATUTE.  55 

the  county  judge,  or  if  the  sheriff,  under-sheriff  or  county 
judge,  together  with  two  justices  of  the  peace  of  the 
county,  appear  at  the  adjourned  day,  but  not  otherwise,  the 
clerk  must  proceed  to  make  the  drawing  in  the  presence  of 
these  persons.^ 

§  57.  Contiiuied  —  The  Drawing  Proper — How  Con- 
ducted.—  The  drawing  must  be  conducted  as  follows  : 

1.  The  clerk  must  shake  the  box  containing  the  ballots, 
so  as  thoroughly  to  mix  them.  2.  He  must  then,  without 
seeing  the  name  contained  in  any  ballot,  publicly  draw  out 
of  the  box  one  ballot  at  a  time,  until  the  requisite  number 
has  been  drawn.  3.  A  minute  of  the  drawing  must  be 
kept  by  one  of  the  attending  officers,  in  which  must  be  en- 
tered the  name  contained  in  each  ballot  drawn,  before 
Another  is  drawn.  4.  If,  after  drawing  the  requisite  num- 
ber, the  name  of  a  person  has  been  drawn,  who  is  dead,  or 
insane,  or  who  has  permanently  removed  from  the  county, 
to  the  knowledge  of  an  attending  officer,  an  entry  of  that 
fact  must  be  made  in  the  minute  of  the  drawing,  and  the 
ballot  containing  that  person's  name  must  be  destroyed. 
Whereupon,  another  ballot  must  be  drawn,  in  its  place, 
and  the  name  contained  therein  must  be  entered,  in  like 
manner,  in  the  minute  of  the  drawing.  5.  The  same  pro- 
ceedings must  be  had,  as  often  as  necessary,  until  the 
requisite  number  of  jurors  has  been  obtained.  6.  The 
minute  of  the  drawing  must  then  be  signed  by  the  clerk, 
and  the  other  attending  officers,  and  filed  in  the  clerk's 
office.  7.  A  list  of  the  names  of  the  persons  so  drawn, 
showing  the  place  of  residence,  and  other  proper  additions, 
of  each  of  them,  and  specifying  for  what  court  and  term 
they  were  drawn,  must  be  made  and  certified  by  the  clerk, 
and  the  other  attending  officers,  and  delivered  to  the  sheriff 
of  the  county.^ 

§  58 .  System  in  New  Jersey  —  Extraordinary  Power  of 
the  Sheriff. —  The  system  pursued  in  New  Jersey  differs 
materially  from  that  in  other  States.     We  have[  previously 

1  Ih.,  §§  1045, 1046. 
2/5.,  §1047. 


56  DRAWING  THE  PANEL.  [CH.  V. 

noticed  the  extraordinary  power  possessed  by  the  sheriff  '-i 
the  selection  of  the  list  of  qualified  jurors.^  Much  tl,. 
same  authority  he  retains  in  the  process  of  drawing.  The 
names  are  not  drawn  out  of  a  box  containing  the  names  of 
all  the.  selected  jurors.  On  the  contrary,  previous  to  each 
term,  a  special  session  of  the  court  is  held  at  which  the 
sheriff  and  the  county  clerk  appear.  The  court  directs  the 
number  of  jurors  to  be  drawn.  The  sheriff  consults  his 
list,  and,  selecting  double  the  number  of  jurors  required, 
copies  their  names  u]ion  separate  slips  of  paper  which  are 
folded  and  placed  in  a  box  containing  no  other  ballots,  from 
which  the  number  ordered  is  drawn  in  open  court.  Thus  it 
will  be  seen  that  this  officer  retains  in  a  marked  degree  the 
dangerous  power  of  selection  possessed  by  the  sheriff  at 
common  law.  In  this  respect,  it  is  believed,  the  systeui  of 
procuring  jurors  in  New  Jersey  is  distinctly  different  from 
that  practiced  in  any  other  State. ^ 

§  59.  System  in  New  England. —  In  the  New  England 
States,  as  previously  noticed,^  the  list  of  jurors  selected  is 
retained  by  the  town  authorities,  instead  of  being  certified 
to  the  county  clerk  ;  therefore  the  drawing  must  necessarily 
be  conducted  by  the  former.  This  gives  rise  to  a  system 
differing  slightly  from  those  of  other  States.  In  Massachu- 
setts the  clerks  of  the  Supreme  Judicial  and  Superior  courts, 
"  in  due  season  before  each  term,"  issue  writs  of  venire 
facias,  requiring  from  each  town  and  city  a  number  of  ju- 
rors, as  nearly  as  may  be  in  proportion  to  their  respective 
number  of  inhabitants.  These  writs  are  delivered  to  the 
sheriff  of  the  county,  and  by  him  transmitted  to  a  consta- 
ble in  each  of  the  towns  and  cities  to  which  they  are  respect- 
ively issued,  who  without  delay  serves  the  writ  on  the  se- 
lectmen and  town  clerk.*  When  the  jurors  are  to  be  drawn, 
the  town  clerk  and  selectmen  attend  at  the  clerk's  office  or 
some  other  public  place  appointed  for  the  purpose  ;  and  if  the 

^  Ante,  §45  (1). 

2  Rev.  i\.  J.  1877,  p.  533,  §  13. 

^  Ante,  §  45  (3). 

^  G.  S.  Mass.  1860,  p.  C8J,  §  10.  e.t  sej. 


§   61.]  PENALTY  FOR  NEGLECT CERTIFICATE.  57 

clerk  is  absent,  the  selectmen  may  proceed  without  him. 
The  process  of  drawing  which  ensues  is  substantially  the 
same  as  in  other  States.^  Any  town  may  at  a  legal  meet- 
ing order  that  all  drafts  for  jurors  therein  shall  be  made  in 
open  town  meeting ;  in  which  case,  when  a  venire  is  served 
upon  the  selectmen,  it  is  their  duty  to  cause  a  town  meet- 
ing to  be  notified  and  warned  for  that  purpose,  in  the  man- 
ner ordered  by  the  town  or  otherwise  prescribed  by  law.'^ 
In  cities  the  mayor  and  aldermen  and  the  clerk  severally 
exercise  all  the  powers  and  duties  with  regard  to  drawing 
and  all  other  matters  relating  to  the  drawing  of  jurors, 
which  in  towns  are  required  to  be  performed  by  the  select- 
men and  town  clerks  ;  therefore,  all  venires  for  jurors  to 
be  returned  from  a  city  are  served  upon  the  mayor  and  al- 
dermen.^ 

§  60.  Penalty  for  Xeglect  to  make  the  Drawing'. —  A 
neglect  of  the  officers  charged  with  the  duty  of  making  the 
drawing  is  generally  punished  by  a  fine,  varying  in  the  high- 
est amount  from  twenty  dollars  *  in  some  States  to  fifty 
in  others,^  and  in  one  State  it  is  five  hundred  dollars.*^ 

§  61.  Certificate  of  OflScers  to  Drawing. —  The  statutes 
generally  require  that  the  officers,  who  have  witnessed  the 
drawing,  shall  certify  to  this  effect.  A  literal  compliance 
with  the  statutory  form  of  this  certificate  is  not  demanded. 
The  statutory  form  being  "  that  said  list  of  names  has  been 
duly  selected  in  conformity  with,  and  according  to  the  spirit 
and  intent  of  this  act,"  it  is  sufficient  if  the  certificate  state 


1  /^.,  §  16.  See  also  G.  S.  N.  H.,  ch.  194,  §  10;  G.  S.  Conn.  1875,  tit. 
19,  ch.  10,  §  6;  G.  S.  Yt.  1862,  ch.  37,  §  5. 

^  lb.,  §  18.  In  Maine  the  statute  requires  tlie  drawing  to  take  place 
before  a  town  meeting  duly  convened  for  this  purpose.  R.  S.  Me.  1871, 
ch.  106,  §  9. 

3  G.  S.  Mass.  1860,  ch.  132,  §  22.     See  also  G.  S.  R.  1. 1S72,  p.  432,  §  15. 

<G.  S.  Mass.  1860,  ch.  132,  §  37;  G.  S.  Vt.,  p.  332,  §  9;  Code  Va.  1873, 
p.  1062,  §  22;  G.  S.  N.  H.,  ch.  194,  §  17;  Busli  Dig.  Fla.,  ch.  104,  §  29; 
R.  S.  W.  Va.  1879,  ch.  109,  §  26. 

5  Miller's  R.  C.  Iowa,  1880,  §  243;  R.  S.  Del.  1874,  ch.  109,  §  23;  R.  S. 
Me.  1871,  ch.  106,  §  16. 

6  Code  Ala.  1876,  §  4762. 


58  DUAWING  THE  PANEL.  [CII.   V, 

simply  tliat  the  selection  was  "in  conformity  with"  the 
law.^  One  of  the  officers  charged  with  the  drawing,  who 
has  certiticd  to  the  performance  of  his  duty  in  conformity 
with  law,  will  not  be  afterwards  heard  to  allege  the  con- 
trary.2 

§  (i'2.  List  of  Juroi's  Drawn  made  Public. —  The  statutes 
of  some  other  States  expressly  provide  for  making  public 
the  result  of  the  drawing;  e.  ^.,  that  of  Nevada,  that  the 
list  of  the  jurors  drawn  shall  be  filed  in  the  clerk's  office, 
subject  to  inspection  by  any  officer  or  attorney  of  the  court.'' 
Others,  like  that  of  New  York,  make  it  the  duty  of  the 
county  clerk  or  sheriff  to  furnish  a  copy  of  the  list  of  trial 
jurors,  drawn  to  attend  a  term,  to  any  person  applying  to 
them  therefor,  and  paying  the  fees  allowed  by  law.^  In 
Louisiana  it  is  provided  that  the  list  of  the  jurors,  after 
being  filed  in  the  clerk's  office,  shall  be  subject  to  the  in- 
spection of  persons  who  may  desire  to  examine  it.'' 

§  63.  General  Views  with  Regard  to  Irregiilarities  in 
Drawing. — At  this  point  we  shall  not  fully  discuss  the  right 
of  parties  to  object  to  the  panel  of  jurors,  because  not 
drawn  according  to  the  directions  of  the  statute.  Objec- 
tions of  this  character  are  required  to  be  taken  by  a  chal- 
lenge to  the  array  ;  therefore  the  discussion  of  these  irreg- 
ularities more  appropriately  pertains  to  the  chapter  devoted 
to  this  challenge.  It  is  proper,  however,  to  state,  that  the 
general  rule  upon  this  subject  is  well  defined.  The  statu- 
tory provisions  regulating  the  drawing  of  jurors,  like  those 
directing  the  selection,  have  not  in  view  the  benefit  of  liti- 
gant i)arties.  As  was  said  in  liafe  v.  6' tale, '^  by  McDonald, 
J.,  (and  it  is  the  key  to  many  problems  which  arise  in  the 
procuring  of  a  jury),  "the  statutes  for  selecting  jurors, 

'  Friend  v.  Ilainill,  34  Md.  298. 

estate  V.  Revells,  31  La.  An.  387. 

3  Comp.  L.  Xev.  1873,  §  1054. 

*  N.  Y.  Code  Rem.  Jus.,  §  1049.  See  also  Cal.  Code  Civ.  Proc,  §  221 : 
Comp.  L.  Mich.  1871,  §  5992;  Comp.  L.  Kan.  1879,  §  2978;  Comp.L. 
Ariz.,  ch.47,  §  27. 

«R.  S.  La.  187G,  §  2127. 

«  20  Ga.  64. 


§    63.]  IKllEGULARITIES.  59 

drawing  and  summoning  them,  form  no  part  of  a  system  to 
procure  an  impartial  jury  to  the  parties.  They  establish 
a  mode  of  distributing  jur}^  duties  among  persons  in  the 
respective  counties  sub  ect  to  that  kind  of  service,  and  of 
setting  apart  those  of  supposed  higher  qualilications  for  the 
most  important  branch  of  that  service ;  they  i)rovide  for 
rotation  in  jury  service  :  they  prescribe  the  qualifications  of 
jurors,  and  the  time  and  manner  of  summoning  them,  and 
are  directory  to  those  wliose  duty  it  is  to  select,  draw  and 
summon  persons  for  jurors."^ 

From  the  foregoing  the  rule  naturally  follows,  that  mere 
irregularities  in  the  drawing  of  jurors,  unless  it  appears  that 
they  operated  to  the  injury  of  the  complaining  party,  will 
not  afford  a  valid  objection  to  the  panel  as  drawn.-'  In 
Friery  v.  People,  just  noticed,  which  is  one  of  the  leading- 
cases  upon  this  point,  the  court  instanced  certain  irregular- 
ities which  must  be  regarded  as  without  prejudice.  "  Sup- 
pose, for  example,"  said  Wright,  J.,  "  that  the  clerk  omits 
to  give  public  notice  of  the  drawing,  or  the  drawing  takes 
place  in  the  absence  of  those  officers  required  to  attend 
and  witness  it,  after  there  had  been  an  adjournment  and  a 
notification  by  the  clerk  to  attend  on  the  adjournment  day, 
are  these  irregularities  ground  for  vitiating  the  whole  panel? 
If  so,  the  business  of  every  court  in  the  State  might  be 
impeded,  if  not  wholly  stopped.  The  officers  named  in  the 
statute,  charged  with  the  duty  of  attending  the  drawing  as 
witnesses,  by  a  neglect  of  such  duty  would  deprive  the 
court  of  jurors  to  aid  in  the  administration  of  the  laws. 
The  system  contemplates  no  such  result,  but  on  the  contrary, 
was  designed  and  intended  to  promote  a  directly  opposite 
purpose."  ^ 

1  See  also  State  v.  AVilliams,  3  Stew.  454 ;  Friery  v.  People,  2  Abb.  App. 
Dec.  215,  230;  s.  c,  2Keyes,424;  54  Barb.  319. 

2  See  in  addition  to  the  cases  previously  cited,  Ferris  v.  People,  35  N. 
Y.  125;  s.  c,  31  How.  Pr.  140;  48  Barb.  17;  1  Abb.  Pr.  (N.  S.)  193: 
State  V.  Guidry,  28  La.  An,  630;  Pratt  v.  Grappe,  12  La.  451;  State  v. 
Miller,  26  La.  An.  579;  Mapes  v.  People,  69  111.  523;  Wilhelm  v.  People. 
72  111.  468. 

3  2  Abb.  App.  Dec.  230,  231. 


t'lO  DRAWING  THE  PANEL  [('H.  V. 

Oil  the  olhor  luiiul,  the  Supreme  Court  of  New  York,  in 
a  late  case,'  considered  that  injury  might  be  claimed  to  ap- 
pear, if  the  challenge  showed  "that  no  persons  for  jurors 
had  been  selected,  that  no  ist  had  been  prepared,  no  ballot 
had  been  placed  in  the  boxes,  and  no  panel  had  been  drawn, 
l)ut  that  a  bod}'  of  men  had  been  summoned  without  any 
of  the  requirements  of  the  statute  having  been  in  any  man- 
ner pursued.  "-' 

These  illustrations  serve  to  show  that  the  cciirt  will  not 
for  trivial  causes  sustain  an  ol)jection  to  the  regularity  of 
the  proceedings  by  which  the  jury  were  procured.  More- 
over, the  regularity  of  the  proceedings  is  supported  by  a 
legal  presumption,  that  the  officers  charged  with  the  duty 
of  drawing  the  jury  have  done  so  according  to  law.^ 

1  Cox  V.  People,  19  Him,  430;  s.  c,  aff'd.  80  N.  Y.  500. 

2  19   Him,  439.     See  also  Jones  v.  State,  3  Blackf.  37;  Campbell   v. 
State,  48  Ga.  353. 

3  Wheeler  v.  State,  42   Ga.  30G;  Brown  v.  Com.,  73  Pa.  St.  322:  Pa- 
sanka  v.  Dau.>;,  31  Tex.  72. 


<§    66.]         SUMMOXING  AND  ENFORCING  ATTENDANCE.  Ol 


CHAPTER  VI. 


OF   SUMMONING  AND  ENFORCING  THE  ATTENDANCE  OF  JURORS. 


SECTION. 

66.  SuramoTJS  of  Jurors  at  Common  Law. 

(1.)  Jm-ors  originally  summoned  to  Westminster  Hall. 
(2.)  Afterwards  summoned  to  the  Country  Assizes. 
(3.)  Panel  arrayed  four  Days  before  the  Session. 
(4.)  The  "Venire  Facias  supplemented  by  the  Distringas. 
(5.)  Different    Kinds    of  Process  —  Precept,    Venire,    oral 
Command. 

67.  Technical  Accuracy  in  Venire  required  at  Common  Law. 

68.  Otherwise  under  American  Statutes. 

69.  Method  of  Summoning  under  these  Statutes  stated. 

70.  Unimportance  of  the  Venire  under  these  Statutes. 

71.  Distinction  between  Venire  and  Precept  in  New  York. 

72.  Order  for  Venire  need  not  be  shown. 

73.  Variance  between  Order  and  Venire  unimportant. 

74.  Instances  of  unimportant  Defects  in  the  Venire. 

(1.;  Style  of  the  Writ. 

(2.)  Officer  to  whom  direeted. 

(3.)  Mandatory  Clause. 

(4.)  Enumeration  of  Qualifications  of  the  Jurors. 

(5.)  Misnomer  of  the  Jurors. 

75.  Disqualification  of  Persons  summoned  no  Objection  to  Venire. 

76.  Objection  to  Venire  must  be  taken  before  Verdict. 

77.  Service  by  the  wrong  Officer  no  Objection. 

78.  Return  of  Venire. 

(1.)  Necessity  of. 

(2.)  Neglect  to  sign. 

(3.)  Within  what  Time  made. 

(4.)  Defects  in. 

79.  Number  of  Jurors  to  be  summoned. 

(1.)  At  Common  Law  and  under  Stat.  Will.  II. 
(2.)  Under  American  Statutes. 
(3.)  Full  Panel  need  not  always  attend. 
(4.)  In  case  of  Persons  jointly  indicted. 


(■>2  SUMMONING  AND  ENFORCING  ATTENDANCE .     [cif.   VI 

50.  Special  Venire  in  Capital  Cases. 

(1.)   When  j^ranted. 

(2.)  How  drawn. 

(3.)  Grounds  for  Quashing. 

(4.)  Xon-Attendance  of  Special  Jurors. 

51.  Special  Venire  upon  Default  of  Jurors. 

(1.)  When  ordered. 

(2.)  Whether  after  Discharjije  of  regular  Panel. 

(3.)  lu  the  Absence  of  the  regular  Jury. 

(4.)  Jurors  must  be  summoned  in  prescribed  Mode. 

(5.)  Variance  between  Order  and  Copy. 

(6.)  Jurors  summoned  from  the  ''Bodj'  of  the  County. 

52.  Substitute  for  Sheriff  as  returning  Oflicer. 

(1.)  Coroner  when  Sheriff  incompetent. 
(2.)  Elisors  when  Coroner  incompetent. 

53.  Fine  upon  non-attending  Jurors. 

(1.)  Under  the  English  Practice. 
(2.)  Under  American  Practice. 
(3.)  In  Case  of  Exempt  Persons. 

84.  Provisions  against  Fraud  in  procuring  Jurors. 

(1.)  Statutes  against  Frauds  of  Officers. 
(2.)  Statutes  against  Professional  Jurors. 

85.  Procuring  Jury  in  Justice's  Court. 


§  66.   Summons    of    Jurors     at    Common    L,aw. —  (1> 

Jurors  originally  simrmoned  to  Westminster  Hall. —  Origin- 
ally the  king's  court  sat  at  times  and  places  suited  to  his 
convenience  and  pleasure.  It  followed  him  in  his  uncertain 
movements,  until  a  change  took  place  in  the  reign  of  John, 
a  provision  of  the  Magna  Charta  requiring  the  holding  of 
common  pleas  "  ^?^  aliquo  loco  certo.''^  This  is  commonly 
known  as  the  severance  of  the  Court  of  Common  Pleas 
from  the  Curia  Regis ;  for  to  this  circumstance  the  Court 
of  Common  Pleas  owes  its  separate  existence.^  Westmin- 
ster Hall  was  selected  by  Henry  HI.  as  the  certain  place 
for  the  seat  of  this  court.- 

(2.)  Afterwards  sunmioned  to  the  Country  Assizes. — 
But  the  advantages  of  having  a  certain  place  for  seeking 
justice  were  offset  by  a  new  grievance  which  became  un- 
avoidable under  the  system.     As  observed  l)y  the  author  of 


J  Bigelow's  Hist,  of  Pi'oeedure  in  England,  pp.  85,  92. 
-  Gilbert's  Hist.  Com.  PL,  Introduction,  p.  31,  note. 


§    66.]  AT  COMMON  LAW.  63 

Trials  per  Pais,^  "All  jurors,  together  with  the  parties, 
came  up  to  the  King's  higher  courts  of  justice  where  the 
cause  depended,  which,  when  suits  multiplied,  was  to  the 
intolerable  burthen  of  the  country."  Therefore,  as  the 
justices  were  already  in  the  habit  of  making  periodical  cir- 
cuits for  the  purpose  of  holding  the  assize  in  pleas  of  land, 
it  was  thought  advisable  to  substitute  them  for  the  full 
court  in  banc  at  Westminster,  in  other  cases  also.^  Ac- 
cordingly, by  the  statute  of  Westminster  the  Second,  c. 
30,^  the  writ  of  Nisi  Prius  was  granted.  This  statute 
enacted  that  these  justices  should  try  other  issues  wherein 
small  examination  was  required  or  where  both  parties  de- 
sired it,  and  return  the  inquests  into  the  court  above.* 
This  led  to  an  alteration  in  the  form  of  the  venire  ;  and  in- 
stead of  the  sheriff  being  simply  ordered  to  bring  the 
jurors  to  the  courts  at  Westminster  on  a  day  named,  he  was 
now  required  to  bring  them  there  on  a  certain  day,  nisi 
prius,  that  is,  unless  before  that  day  the  justices  of  assize 
came  into  his  county,  in  which  case  the  statute  directed  him 
to  return  the  jury,  not  to  the  court,  but  before  the  justices 
of  assize.^ 

(3.)  Panel  arrayed  four  Days  before  the  Session. — 
But  under  the  statute  just  noticed  the  sheriff  did  not  return 
the  writ  of  venire  until  the  day  on  which  he  brought  the 
jurors  into  court  where  the  justices  were  sitting.  This  pro- 
cedure deprived  the  parties  of  all  knowledge  as  to  the  com- 
position of  the  panel,  until  actually  confronted  with  the 
jurors.  They  were  thus  deprived  of  an  opportunity  for 
examination  into  causes  of  exception  to  the  jurors.  This 
seems  to  have  been  regarded  as  a  great  evil,  and  it  was 

1  Ed.  of  1725,  p.  64. 

2  Forsyth,  Hist,  of  Trial  by  Jury,  168. 

3  13Edw.  I.  (A.  D.  1285). 

^  The  language  of  the  statute  is  "  that  all  pleas  in  either  bench,  which 
require  only  easy  examination,  sliall  be  determined  in  the  country 
before  the  justices  of  assize,"  etc.  The  statute,  therefore,  was  held  to 
authorize  the  trial  in  the  country  of  criminal,  as  well  as  civil  cases. 
2  Hawk.  P.  C.  ch.  42,  §  2. 

■'  Forsyth,  Hist,  of  Trial  by  Jury,  p.  169. 


64  SIMMOXIXG  AND  ENFORCING  ATTENDANCE.     [CH.  VI. 

tliereforc  onacted  by  the  42  Edw.  III.,  c.  11,  "that  no  in- 
<jucst,  but  assizes  and  deliverances  of  gaols,  be  taken  by 
writ  of  nisi  jJi'ius,  nor  in  other  manner,  at  the  suit  of  any 
ffreat  or  small,  l)efore  that  the  names  of  all  them  that  shall 
pass  in  the  inquests  be  returned  in  the  court.  And  that  the 
sheriffs  array  the  panels  in  assizes  four  days  at  the  least 
I)efore  the  sessions  of  the  justices,  upon  pain  of  twenty 
pound,  so  that  the  parties  may  have  the  view  of  the  panels, 
if  they  the  same  demand."  ^ 

(4.)  The  Venire  Facias  supplemented  by  the  Distringas. 
—  The  practice  which  grew  up  under  this  statute  restored 
the  venire  to  its  original  form;  but  for. the  purpose  of 
bringing  in  jurors,  it  became  purely  nugatory.  The  clause 
of  nisi  jjrius  was  taken  out,  and  tlie  office  of  the  venire 
was  changed  from  a  writ  of  summons  to  a  means  merely 
of  informing  the  parties  as  to  the  panel  who  were  to  be 
summoned.  The  sheriff  no  longer  summoned  under  the 
venire,  but  returned  it  into  court  with  the  jurors'  names  in 
a  panel  annexed,  under  the  fiction  that  the  jurors  would  not 
come.  Pending  the  issue  and  actual  service  of  a  new  proc- 
ess, the  parties  had  an  opportunity  of  seeing  the  names 
upon  the  panel  and  making  the  necessary  inquiries.^  A 
fresh  writ  was  next  issued,  called  a  distringas  (containing 
the  old  clause  of  nisi  prius),  which  commanded  the  sheriff 
to  have  the  jurors  in  court  on  a  day  therein  named,  unless 
before  that  day  the  justices  of  assize  should  come  into  his 
county.  Therefore  it  was  the  distringas  which  really  de- 
termined the  time  and  place  of  trial. '^ 

(5.)  Different  Kinds  of  Process — Precept,  Venire, 
Oral  Command. —  At  common  law  a  precept  to  summon  the 

^  Reviewiiif?  the  practice  in  lS2l,Lord  Tenterden  stated  that  at  that 
time,  upon  trials  for  felony,  the  panel  was  not  in  anj"  manner  published 
or  made  known  until  the  sitting  of  the  court  at  which  the  trial  took 
place.     Rex  v.  Edmonds,  4  Barn.  &  Aid.  471,  479. 

^  Hence  the  abuse  of  ''  laboring"  the  jnrj^  before  their  appearance  at 
the  assize.     Forsyth,  Hist,  of  Trial  bj'  Jury,  p.  171. 

3  In  the  Court  of  Common  Pleas  there  was  an  intermediate  process 
between  the  venire  and  disti-ingafi.  called  the  habeas  corpora  juratorwn 
upon  which  the  jurors  might  be  brought  in.     But  if  they  did  not  come, 
the  distringas^  followed.     Trials  per  Pais  (Ed.  of  1725),  p.  64. 


§   68.]  THE  VENIRE.  G5 

jury  was  always  necessary.  The  different  courts  had  dif- 
ferent kinds  of  process  ;  but  in  all  the  courts,  process  of 
some  kind  was  absolutely  essential.  It  was  the  authority 
under  which  the  sheriff  summoned  the  jury,  and  it  was 
only  upon  the  return  of  the  process,  that  the  court  acquired 
jurisdiction  to  impanel  the  jury  and  try  the  cause. ^  "In 
some  courts,"  says  Chitty,  "there  must  be  a  particular 
precept  to  the  sheriff,  or  writ  of  venire  facias  ;  in  others, 
a  general  precept  Avill  suffice,  or  the  whole  may  be  merely 
a  command  to  the  sheriff,  to  return  a  jury,  ore  teiius/'^ 

§  67.  Technical  Accuracy  in  Venire  required  at  Com- 
mon Law. —  The  venire  facias  used  in  the  King's  Bench, 
issued  in  the  king's  name  under  the  seal  of  the  court  and 
teste  of  the  chief  justice,  and  always  bore  teste  after  the 
issue  joined  between  the  king  and  the  prisoner.'^  The  im- 
portance of  this  formality  being  strictly  complied  with  is 
obvious  when  it  is  recollected  that  at  common  law,  upon 
the  summons  of  a  jury,  the  sheriff  was  vested  with  an  un- 
controlled discretion,  and  that  his  return  upon  the  venire 
was  the  only  means  of  identifying  the  jury  summoned  with 
the  jury  impanelled.  Therefore  neither  the  venire  itself, 
nor  its  issue  in  technical  form  could  be  dispensed  with, 
without  a  complete  wrecking  of  all  formalities  in  the  sum- 
mons of  the  jury. 

§  68.  Otherwise  under  American  Statutes. —  The  stat- 
utes generally  in  this  country  have  so  greatly  changed  the 
common  law  method  of  procuring  juries,  that  the  errors  in 
the  jury  process,  of  which  a  party  in  a  case,  civil  or  crim- 
inal, can  take  advantage,  are  comparatively  few.  This  ren- 
ders unnecessary  any  examination  in  detail  of  the  large 
number  of  cases  found  in  the  old  reports,  which,  in  spite  of 

1  McGuire  v.  People,  2  Park.  C.  R.  148, 158,  per  Pratt,  J.,  citing  1  Chit. 
Xr.  L.  505,  508.     See  also  2  Hawk.  P.  C.  ch.  41,  §  1. 

2 1  Chit.  Cr.  L.  506.  Of  this  last  description  were  the  jnstices  of  gaol 
delivery,  who,  after  the  issue  of  the  general  precept,  might  call  upon  the 
sheriff  for  a  jurj^  by  a  parol  award,  or,  upon  the  panel  being  exhausted, 
might  award  a  new  panel,  ore  tenus,  without  further  process,  returnable 
instanter.  Ibid.,  p.  508;  3  Bac.  Abr.  Jury  B.  1 ;  2  Hawk.  P.  C,  ch.  41.  §  1. 
3  2  Hale  P.  C.  260.     See  also  2  Hawk.  P.  C,  ch.  41.  §  1. 

(5) 


66  SUMMONING  AND  ENFORCING  ATTENDANCE.     [CH.  VI. 

the  statutes  of  jeofails,  aiford  illustrations  of  reversals  of 
judgments  for  a  failure  to  comply  with  the  many  technical- 
ities of  the  common  law  in  the  process  of  procuring  the 
jury.  To  such  cases,  therefore,  a  general  reference  only 
will  be  made.^ 

§  69.  Method  of  Siininioiiinj;"  iiiidor  these  Statutes 
stated. —  Our  system  of  summoning  jurors  bears  little  re- 
semblance to  that  practiced  under  the  common  law.  In 
Maine,  New  Hampshire,  Vermont,  Massachusetts,  Pennsyl- 
vania and  West  Virginia,  a  writ  of  venire  facias,  express^ 
so  called,  issues  by  order  of  court  before  each  drawing ; 
but  this  is  the  only  process.^  In  all  other  States  it  is  be- 
lieved that  the  drawing  takes  place  as  a  matter  of  course 
upon  a  certain  date,  and  the  venire  issues  only  after  the 
drawing  is  finished  and  the  list  of  jurors  ready  to  be  sum- 
moned. Some  States  continue  to  designate  this  process  as 
aremre;^  in  others  it  is  known  as  an  "  order,"  ^  "  pre- 
cept," ^  "summons,"^  or  simply  "process."^  In  many 
of  the  statutes  no  mention  is  made  of  the  process.  When 
the  drawing  is  concluded,  the  clerk  makes  a  copy  of  the 
names  of  the  jurors  drawn,  which  he  delivers  to  the  sheriff, 
which  per  se  constitutes  the  order  and  authority  of  the  sher- 
iff to  summon.^ 

1  See  Rogers  v.  Smith,  1  Ad.  &  El.  772,  collating  many  of  the  early 
authorities. 

2  R.  S.  3re.,  ch.  lOG.  §  9;  G.  S.  X.  H.  1867,  §  7;  G.  S.  Vt.  1863,  ch.  37, 
§  2;  G.  S.  Mass.  1860,  p.  681,  §  10;  1  Bright.  Purd.  Pa.  Dig.  833.  §  34; 
2  R.  S.  Va.,  ch.  106,  §  11.  lu  Connecticut  a  ''  warrant  "  is  issued  to  the 
town  constable  directing  the  drawing.     G.  S.  Conn.  1875,  p.  433,  §  6. 

3  R.  C.Miss.  1880,  §  1692;  R.  S.  Ohio,  1880,  §  5167;  R.  C.  Md.  1878,  p. 
560,  §  3;  Comp.  L.  Nev.  1873,  §  1054;  Bush  Dig.Fla.,ch.  104,  §  6;  R.  S. 
Wis.  1878,  §  2535;  G.  L.  Colo.  1877,  §  1471 :  R.  S.  La.  1876,  §  2127;  Code 
Va.  1873,  p.  1060,  §  7. 

*  G.  S.  Xeb.  1873,  p.  643,  §  660;  Code  Ala.  1876,  §  4744;  Battle  Rev.  X. 
C,  p.  196.  §  229?. 

5  Code  Ga.  1873,  §  3931 ;  Miller's  R.  C.  Iowa,  1880,  §  241. 

6  R.  S.  111.  1880,  ch.  78,  §  10;  R.  S.  Mo.  1879,  §  2786. 

7  2Ind.  Rev.  1876,  p.  30,  §2. 

s  N.  Y.  Code  Rem.  Jus.,  §  1047;  Comp.  L.  Ariz.  187.7,  §  2418;  G.  S.  Ky. 
1879,  p.  574,  §  6;  Ark.  Dig.  Stat.  1874,  §  3677;  Gen.  Laws  Oreg.  1872, 
Civ.  Code,  §  930;    Comp.  L.  Mich.  1871,  §  5991;  Comp  L.  Kan.  1879, 


§    70.]  THE  VENIRE.  67 

§  70.  Unimportance  of  tlie  Venire  nncler  these  Stat- 
utes.—  What  is  the  importance  of  the  venire  under  our 
system  of  procuring  juries?  It  is  plain  that  a  juror  would 
not  be  in  contempt  for  non-attendance,  nor  would  the 
sheriff  be  guilty  of  a  breach  of  duty  for  refusing  to  sum- 
mon a  panel  without  it,  where  the  statute  requires  its  issue. 
But  does  it  materially  affect  the  regularity  of  the  proceed- 
ings of  a  trial,  if  not  issued  at  all  or  without  seal  and  in  due 
form?  The  list  of  jurors  is  definitely  ascertained  by  the 
drawing,  before  the  sheriff  undertakes  the  summoning.  The 
sheriff's  duties  are  purely  ministerial.  He  is  to  summon 
that  list  of  jurors,  and  )ione  other.  It  would  therefore 
seem  that  so  long  as  the  list  drawn  has  been  duly  sum- 
moned, the  omission  to  issue  a  venire  for  this  purpose  is  a 
circumstance  wholly  without  prejudice  to  the  party  in  any 
case.^  "The  statute,"  said  Marcy,  J.,  "regulating  the 
drawing  and  summoning  of  juries,  has  made  the  jury  proc- 
ess almost  a  matter  of  mere  form ;  and  in  civil  cases  no 
•defects  in  the  venire,  or  irregularity  in  the  issuing  or  re- 
turn of  it,  will  be  now  permitted  to  affect  a  judgment  or 
the  proceedings  at  the  trial."  ^ 


§  2976;  Cal.  Code  Civ.  Proc,  §  225;  Rev.N.  J.  1877,  p.  533,  §  13;  R.  S. 
Del.  1874,  ch.  109,  §  8;  Stat.  Tenn.  1871,  §  3991.  In  Texas  this  list 
must  be  under  the  seal  of  the  court.    E.  S.  Tex.  1879,  §  3046. 

1  Bird  V.  State,  14  Ga.  43.  In  this  ease,  wliere  the  omission  of  the 
venire  was  relied  upon  to  sustain  a  motion  in  arrest  of  judgment,  Nisbet, 
J.,  said :  ''  With  no  allegation  of  bias,  prejudice  or  corruption  it  would 
be  a  sin  against  common  sense,  and  a  childish  adhesion  to  technicality, 
reproachful  to  the  judicature  of  the  State,  to  arrest  the  judgment,  or  re- 
mand the  case  for  a  rehearing."  To  the  same  effect  see  State  v.  Crosby, 
Harper  Const.  Eep.  (S.  C.)  90;  Maher  v.  State,  1  Port.  265;  Johnson  v. 
Oole,  2]Sr.  J.  L.  266;  (contra,  Howell  v.  Robertson,  6  N.  J.  L.  142); 
State  V.  Williams,  3  Stew.  454;  Lyon  v.  Commercial  Ins.  Co.,  2  Rob. 
(La.)  267;  State  v.  Folke,  2  La.  An.  744;  Trembly  v.  State,  20  Kan.  116, 
120;  State  v.  Harris,  30  La.  An.  90;  McDermott  v.  Hoffman,  70  Pa.  St.  31 ; 
State  \.  Perry,  Busbee  (X.  C;  330;  Bennett  v.  State,  Mart.  &  Yerg.  133; 
Mackey  v.  People,  2  Colo.  13,  17;  United  States  v.  Reed,  2  Blatch.  435, 
452.  A  fortiori,  an  immaterial  variance  between  the  seal  of  the  court 
and  that  impressed  upon  the  venire  will  not  vitiate  the  process.  Cor- 
dova V.  State,  6  Tex.  App.  207,  222. 

2  Haight  V.  Holley,  3  Wend.  258,  262. 


nS  SUIklMONING  AND  ENFORCING  ATTENDANCE.     [CH.  VI, 

The  contniry  Avas  previously  reluctantly  decided  l)y  the 
same  court  in  a  t'a})ital  case,  the  objection  lacing  that  tlie 
venire,  though  issued,  was  Avithout  seal.  It  was  held  to  l)e 
a  nullity.  Sri:xcER,  J.,  delivering  the  opinion  of  the  court,, 
said:  "Inasnindi,  then,  as  a  venire  was  necessary  at  com- 
mon law,  and  as  the  statute  yet  requires  it  to  be  issued,  the 
omission  to  issue  it,  we  must  consider  an  error  apparent  on 
the  record  ;  and  in  such  a  case,  affecting  life,  we  do  not  feel 
ourselves  authorized  to  dispense  with  a  process,  required  by 
the  common  law,  and  also  by  the  statute,  although  we  may 
not  be  able  to  perceive  much  use  in  continuing  it."  ^ 

§71.  Distinction  between  Venire  and  Precept  in  Xew 
York. —  Where  the  venire  is  dispensed  with  by  statute,  care 
must  be  exercised  not  to  confound  this  process  with  any 
other  remaining  and  bearing  a  seml)lance  to '  it.  Thus, 
under  the  statutes  of  New  York,  provision  was  made  for 
drawing  both  grand  and  petit  jurors,  a  certified  list  of  the 
names  being  delivered  to  the  sheriff,  who  was  required  to 
summon  the  persons  named  in  such  list  and  make  his  return 
thereon  to  the  court.  No  venire  was  necessary  ;  but  after 
the  drawing,  the  district  attorney  issued  a  "precept"  to 
the  sheriff,  commanding  him  to  summon  the  jurors  so 
drawn.  This  precept  is  not  the  common  law  venire,  nor  a 
substitute  for  it,  since  the  law  does  not  require  that  it  should 
be  returned.  The  failure  to  issue  it,  therefore,  in  no  man- 
ner affects  the  validity  of  the  sheriff's  return,  since  the  only 
return  he  is  required  to  make  is  ui)on  the  certified  list  deliv- 
ered to  him  bv  the  clerk. ^ 


1  People  V.  McKay,  18  Johns.  212,  217.  Another  court,  apparently  in 
deference  to  the  authority  of  this  decision,  has  acquiesced  in  it.  See 
State  V.  Dozier,  2  Speers  L.  211 ;  State  v.  Williams,  1  Rich.  L.  188.  In 
Missouri  it  was  early  held  that  the  practice  of  circuit  courts  in  summon- 
ing jurors  more  closel_y  resembled  that  of  the  justices  of  gaol  delivery  at 
common  law,  than  of  other  courts;  therefore  the  award  of  a  formal 
venire  was  unnecessary.  Samuels  v.  State,  3  Mo.  68;  State  v.  Marshall. 
:5G  Mo.  400;  State  v.  Jones,  Gl  Mo.  232. 

2  People  V.  McCann,  3  Parker.  Cr.  R.  272;  People  v.  Cummings,  3 
Park.  Cr.  R.  343;  People  v.  Robinson,  2  Park.  Cr.  R.  235,  (overruling 
McGuire  v.  People,  2  Park.  Cr.  R.  148.) 


§    74.]  THE  VENIRE.  69 

§    72.   Order    for    Venire    need    not    be    shown. —  The 

order  directing  the  issue  of  a  venire  need  not  appear  of 
record.  When  this  writ  is  issued  by  the  proper  officer, 
under  the  seal  of  the  court,  reguLar  in  all  respects,  in  the 
absence  of  a  challenge  to  the  array,  or  a  motion  to  quash 
the  writ  in  the  court  below,  an  appellate  court  will  presume 
that  the  writ  was  authorized  and  the  proper  order  made  for 
its  issue. ^ 

§  73.  Variance  between  Order  and  Venire  Unimportant. 

—  Where  the  order  for  a  special  venire  in  a  capital  case  di- 
rected that  thirty-six  "persons"  be  summoned,  etc.,  and 
the  writ  commanded  the  sheriff  to  summon  thirty-six  good 
and  lawful  men  of  the  county,  and  the  sheriff  returned 
that  he  had  summoned  the  following  named  "  jurors',"  this 
was  held  good  as  against  an  objection  made  in  the  appellate 
court  for  the  first  time,  that  the  order  did  not  direct  thirty- 
six  good  and  lawful  men  of  the  county  to  be  summoned.^ 

§    74.   Instances  of  Unimportant  Defects  in  the  Venire. 

—  (1).  iStyle  of  the  Writ. —  In  an  early  Pennsylvania  case 
under  a  provision  of  the  constitution  prescribing  that  "  the 
style  of  all  process  shall  be  the  Commonwealth  of  Pennsyl- 
vania," it  was  held  to  be  a  matter  of  no  consequence  in 
what  part  of  the  process  the  commonwealth  was  introduced, 
so  that  the  command  AVas  given  in  its  namc.^ 

(2).  Officer  to  lohom  directed. —  It  is  no  objection  to  a 
writ  of  venire  facias,  that  it  is  directed  "to  any  sheriff  of 
the  State  "  etc.,  provided  it  fall  into  the  hands  of  the  proper 
sheriff  and  l)e  duly  executed  bv  him.^ 

(3).  Mandatory  Clause. —  It  was  held  to  be  no  objection 
to  a  venire,  thai  it  read,  "I  command  you  to  summon," 
instead  of,  "  You  are  commanded  to  summon,"  or  that  the 
writ  was  signed  by  the  clerk  of  the  court  in  his  own  name, 
without  an}' addition  indicating  his  office.^    "This  objection," 

1  Peri  V.  People,  65  111.  17;  State  v.  Cole,  9  Humph.  626. 

2  White  V.  State,  16  Tex.  206. 

3  White  V.  Com.,  6  Biniii  179. 

^  State  V.  Phillips,  2  Ala.  297 ;  Louw  v.  Davis,  13  Johns,  227.     Compare 
State  V.  Steclman,  7  Port.  495.     See  post.,  §  77. 
^  State  V.  Cole,  9  Humph.  627. 


70  SUADIONING  AND  ENFORCING  ATTENDANCE.       [CH.  YI. 

said  TuRLEY,  J.,  "  savors  too  much  of  refinement  oven  for 
criminal  proceedings.  The  writ  is  intended  as  a  specitioa- 
tion  of  the  jurors  to  be  summoned  by  the  sheriff,  and  as  a 
command  to  summon  them  ;  it  is  a  command  emanating 
from  the  county  court,  and  running  always  in  the  name  of 
its  agent  or  servant."  ^ 

(4.)  Enumeration  of  Qualifications  of  the  Jurors. —  In 
an  early  New  Jersey  case  it  was  stated,  that  a  strictly  cor- 
rect form  of  venire  would  enumerate  all  the  qualifications 
required  of  jurors  by  the  statute.  At  the  same  time  the 
court  refused  to  reverse  a  judgment  for  the  reason  that  the 
venire  directed  the  summons  of  good  and  lawful  men,  be- 
ing freeholders  of  the  county,  omitting  other  qualifications 
required  by  law.^  Substituting  in  the  venire  the  words 
"good  and  lawful  men"  for  "citizens  of  this  State  and 
freeholders,"  was  held  not  to  be  a  fatal  error  in  a  venire,. 
upon  an  objection  taken  in  due  time.^ 

(5.)  Misnomer  of  the  Jurors. —  The  defendant  in  an  in- 
dictment cannot  object  to  proceeding  to  trial  on  account  of 
a  mistake  in  the  name  of  one  of  the  panel ;  for  such  juror 
may  be  passed  by  if  present,  and  if  not  present,  he  would 
be  passed  as  a  matter  of  course.^  Nor  is  it  any  objection 
that  the  Christian  name  of  the  juror  is  indicated  l)y  the 
initial  letter,  and  not  spelled  in  full ;  '^  especially  when  it  is 
not  alleged  that  the  party  complaining  has  been  thereby 
misled. 

§  75.  Disqualification  of  Persons  siinimoned  no  Objec- 
tion to  Venire. —  A  motion  to  quash  the  venire  because  cer- 
tain of  the  jurors  summoned  are  lacking  the  statutory  qual- 
ifications, will  not  be  sustained.  ■  This  constitutes  simply  a 

1  md.  p.  G28. 

2  Bartow  v.  Mnrry,  2  X.  J.  L.  f)7.  Kirkpatrick,  C.  J.,  diss.,  (ovevrnl- 
ing  also  the  opinion  of  the  latter  in  Sayres  v.  Scudder,  and  Veal  v.  Brown, 
lUd.  pp.  .53,  72.) 

3  Sharp  V.  Hendricksou,  2  X.  .J.  L.  6SG:  Cox  v.  Haines,  Ibid.  G87;  State 
v.  Alderson,  10  Yerg.  523. 

4 Bill  V.  State.  29  Ala.  34;  Hall  v.  State,  51  Ala.  9. 
^  Ibid.    See  also  Fields  v.  State,  52  Ala.  348;  Aikin  v.  State.  35  Ala> 
399;  State  v.  Simmons,  6  Jones,  L.  309. 


§    77,]  SERVICE  OF  THE  VENIRE^  71 

ground  of  challenge  to  the  individual  juror.  The  law  does 
not  require  perfection  in  the  list  of  selected  jurors  from 
Avhich  those  of  the  venire  are  taken,  and  such  mistakes  are 
clearly  unavoidable  and  in  general  without  detriment.^ 

§  7t).  Objection  to  Venire  must  be  taken  before  Ver- 
dict.—  A  motion  in  arrest  of  judgment  will  not  be  sus- 
tained upon  the  ground  that  the  venire  neither  issued,  nor 
was  returned  within  the  time  specified  by  law.  In  pre- 
scribins;  such  time,  the  leoislature  has  nothino-  more  in  view 
than  to  procure  prompt  action  upon  the  part  of  the  sum- 
moning officers."^  In  general,  an  irregularity  in  the  venire 
must  be  objected  to  before  verdict.^ 

§  77.  Service  by  tlie  Wrong-  Officer  no  Objection. —  Ser- 
vice seems  to  be  important,  only  that  the  jurors  may  be  put 
in  contempt  in  case  they  fail  to  appear.  Therefore,  it  will  be 
held  good  as  against  an  objection  of  the  defendant,  even  in 
a  criminal  case,  although  not  served  by  the  officer  named  in 
the  statute.  This  is  unequivocally  decided  by  the  Supreme 
Court  of  Michigan,  the  opinion  being  delivered  by  Cooley, 
J.  "  The  first  exception  in  this  case,"  sai'd  he,  "  is,  that 
the  jurors  were  summoned  by  the  sheriff  of  Wayne  County 
instead  of  by  an  officer  of  the  metropolitan  police.  There 
is  no  claim  that  the  jurors  were  improperly  drawn,  or  that 
there  was  any  improper  conduct  by  the  sheriff.  The  only 
complaint  is  that  the  wrong  officer  summoned  them.  We 
think  there  is  nothing  in  this  objection.  If  the  juroi-s, 
after  being  properly  drawn,  had  appeai'ed  without  being 
summoned  at  all,  no  objection  could  have  been  taken  after- 
wards ;  and  at  most  the  action  of  the  sheriff  can  only  b3 
treated  as  a  nullity.     It  is  immaterial  to  this  case,  there- 


iPIall  V.  State,  40  Ala.  098;  Fields  v.  State,  52  Ala.  348;  Sparks  v. 
Plankinhorne,  4  Yeates,  384;  Wesley  v.  State.  Gl  Ala.  282;  Boles  v. 
State,  24  Miss.  445. 

2  State  V.  McElmnrray,  3  Strob.  L.  39;  State  v.  Crosby,  Harper  Const. 
(S.  C.)  91 ;  People  v.  Justieei,  20  Johns.  310;  Wash  v.  Com.,  IG  Gratt.  530. 

3  Brown  v.  State,  12  Ark.  623;  Carinichael  v.  Howell,  2  N.  J.  L.  376; 
Plttstielcl  V.  Barnstead,  40  X.  11.  477;  Bodge  v.  Foss,  39  N.  H.  407; 
State  V.  Ilascall,  G  N.  H.  352;  "Wilcox  v.  School  District,  2G  N.  11.  303. 


72  SUMMONING  AND  ENFORCING  ATTENDANCE.     [CII.  VI. 

fore,  which  otHcor  was  entitled,  uiulei-  the  .statute,  to  serve 
the  venire.'"  ^ 

§  78.  Return  of  Voiiiro. —  ( 1 . )  uVecessify  of. —  The  return 
upon  the  venii-e  is  essential,  since  no  other  certain  means  is  af- 
forded for  identifying  the  jurors  drawn  with  those  jjresent  in 
court  or  failinir  to  attend.'^  Altliouuh  the  statute  regulating 
the  drawing  fails  to  enjoin  this  duty,  this  will  not  justify  an 
omission  to  perform  it.  As  said  hy  the  Supreme  Court  of 
Pennsylvania  in  a  late  case,  "  This  is  a  common  law  duty, 
and  needs  no  legislative  command."  "'  Such  omission,  how- 
ever, does  not  vitiate  the  array.  It  may  be  supplied  by  an 
order  of  the  trial  court  upon  the  otiiccrs  to  return  the 
venire.  But  where  such  order  is  not  made,  the  judgment 
will  not  necessarily  be  reversed.  In  the  case  just  noticed 
the  court  continued  :  "  The  error  is  more  formal  than  sub- 
stantial ;  and  the  court  below  appears  to  have  had  such  evi- 
dence before  it  as  satislied  its  conscience  that  the  law  had 
been  complied  with  in  all  important  particulars."  *  In  an 
early  Massachusetts  case  a  juror  was  placed  u[)on  the  panel 
upon  his  swearing  that  he  had  been  summoned  by  the  con- 
stable, although  his  name  was  omitted  from  the  return.^ 

(2.)  Necflect  to  sign. —  The  neglect  of  the  sheriff  to  sign 
his  return  to  the  jury  process  directed  to  him  is  not  a  suffi- 
cient reason  for  quashing  the  array.  On  the  contrary,  the 
court  will  quash  the  return  to  the  process,  and  on  motion 
will  direct  the  sheriff  to  amend  his  return  l)y  indorsing  on 
the  wa-it  the  execution  thereof,  and  signing  the  same.'' 

(3).  Within  ichat  Time  made. — The  time  provided  by 
statute,  within  which  a  return  shall  be  made  bv  the  sheriff, 


i  People  V.  Willi:;nis.  24  :Midi.  150.  161.  See  iilso  Kennedy  v.  Com.,  14 
Bush,  340. 

^People  v.  Jones,  24  Midi.  21"). 

3  Kolland  v.  Com.,  82  Pa  .St.  30(!.  322. 

<  Pnd. 

5  Patterson's  Case,  0  Mass.  4SG. 

6  Dewar  v.  Speuce,  2  Whart.  211 ;  Com.  v.  Miller.  4  Pliila.  210;  Com.  v. 
Green,  1  Aslmi.  289,  291;  Com.  v.  Cliauneey.  2  Aslini.  90;  Com.  v. 
Parker.  2  Pick.  549. 


§    78.]  RETURN  OF  THE  VENIRE.  73 

is  generally  regarded  as  purely  directory.  ^  The  object  of 
the  requirement  is  to  give  the  parties  an  opportunit}^  for  in- 
specting the  panel.  Therefore,  where  the  statute  made  it 
the  duty  of  the  sheriff  to  return  the  venire  issued  for  the 
trial  jury  at  least  two  days  prior  to  the  day  fixed  by  law  for 
the  commencement  of  the  term,  a  return  upon  the  first  day 
of  the  term  was  held  to  afford  ample  op})ortunity  for  in- 
specting the  [)anel  before  trial.  ^  But  a  conviction  in  a 
capital  case  was  reversed,  where  it  appeared  that  the  return 
was  not  filed  until  the  day  upon  which  the  defendant  was 
sentenced,  and  two  days  after  the  trial.  ^ 

(4).  Defects  in. — The  requirement  of  the  statute,  that 
the  sheriff  shall  specify  in  his  return  the  manner  in  which 
the  jurors  were  notified,  is  to  enable  the  court  to  punish  de- 
linquent jurors  for  non-attendance.  An  omission  of  this 
specification  can  give  the  parties  no  possible  ground  of  ob- 
jection, especially  where  all  the  jurors  appear.  ^ 

The  sheriff's  return  upon  a  special  venire  to  supply  a  de- 
ficiency of  jurors  need  not  contain  the  names  of  the  jurors 
80  summoned,  although  the  rule  is  otherwise  as  to  the  re- 
turn of  jurors  of  the  regular  panel.  ^ 

A  return,  although  grammatically  incorrect,  is  sufficient, 
if,  "  looking  at  it  with  the  eyes  of  common  sense,"  its  true 
meaning  is  obvious.  "  In  the  New  England  States  the  jurors 
are  drawn  by  the  town  authorities  upon  notice  by  the  sheriff 
or  his  officer.  Where  the  return  of  a  constable  read  :  "  We 
have  appointed  J.  C.  a  juror,  etc.,"  the  language,  though  in- 
accurate, was  considered  to  be  perfectly  intelligible,  the 
"  we  "  having  reference  to  the  town  of  which  the  constable 
was  an  inhabitant.^  In  the  same  case  the  venire  directed 
the  constable  to  cause  a  juror  to  l)e  drawn  not  more  than 


1  Mowry  v.  Starbuck,  4  Cal.  274;  State  v.  Squaires,  2  Nev.  220. 

-  State  V.  Squaires.  aupra. 

3  State  V.  Vegas,  19  La.  An.  105. 

■»  People  V.  Jones,  24  Mich.  215. 

5  State  V.  Stolvely.  16  Minn.  282. 

6  Maples  V.  Park,  17  Conn.  338. 
^  Fellow's  Case,  5  Me.  333. 


74  SUMMONING  AND  ENFORCING  ATTENDANCE,      [CII.   VI. 

twenty,  iioi*  less  tliun  six  (lays  before  the  sittiiii::  of  the 
court.  A  return  without  date,  that  the  juror  was  drawn 
"  as  al)ove  directed,"  was  held  sufficient.  A  return  of  "  not 
found"  as  to  certain  persons  drawn  on  a  special  venire  in  a 
capital  case  is  equivalent  to  "  absent  from  the  county,"  which 
under  a  statute  justified  the  issue  of  an  alias  writ  for  other 
jurors  to  supply  the  deticiency.^ 

Where  the  issue  of  the  venire  precedes  the  drawing  of  the 
panel,  it  has  been  held  to  be  unnecessary  that  it  should  ap- 
pear from  the  sheriff's  return  that  the  panel  was  drawn  ac- 
cording to  law.  It  will  be  presumed  that  the  sheriff,  who 
returns  his  writ  executed,  has  proceeded  according  to  law,  "^ 
So,  although  the  summoning  officer  omits  to  mention  the  day 
on  which  he  summoned  the  jurors,  they,  being  in  attendance, 
may  testify  that  they  have  been  duly  summoned  and  will 
thereafter  be  sworn.^ 

§  79.  Xiimber  of  Jurors  to  be  siimiuonod.  —  (!•)  -4< 
Common  Law  and  under  Slat.  Will.  II. —  Originally  there 
seems  to  have  been  no  restriction  upon  the  discretion  of 
the  sheriff  as  to  the  number  of  jurors  to  be  summoned  for 
any  given  assize.  By  an  early  statute,^  however,  which  re- 
cites that  "  whereas  the  sheriffs  were  used  to  summon  an 
unreasonable  multitude  of  jurors  to  the  grievance  of  the 
people,"  it  was  ordained  that  from  thenceforth  in  one  assize 
no  more  than  twenty-four  should  be  summoned.  But,  as 
was  held  upon  the  trial  of  Sir  Harry  Vane,  this  statute  does 
not  extend  to  jurors  returned  for  criminal  trials  on  the 
crown  side  of  the  court.  The  reason  is  obvious,  that  oth- 
erwise, in  a  capital  case,  an  accused  person  could  readily 
postpone  his  trial  by  the  exercise  of  his  peremptory  chal- 
lenges. Therefore  in  the  case  just  noticed,  the  sheriff,  at 
the  command  of  the  court,  returned  a  panel  of  sixty.'' 

1  Davis  V.  State,  25  Ohio  St.  369. 

2  Com.  V.  Green,  1  Asian.  289.    But  contra  see  Eaton  v.  Com.,  G  Binn.^ 
447. 

»  Anon.,  1  Pick.  196. 
*  Stat.  W.  II.,  c.  38. 
^  Sir  J    Kclynge,  16. 


§    79.]  NUMBER  TO  BE  SUMJVIONED.  75 

Upon  the  trial  of  certain  persons  for  treason,  in  the 
United  States  Circuit  Court  for  the  district  of  Pennsylvania, 
it  was  held  that  inasm  i  li  as  no  act  of  Congress  fixed  the 
number  of  jurors  to  be  summoned,  nor  expressly  adopted 
any  State  rule  for  this  purpose,  the  necessary  consequence 
must  follow,  that  the  number  to  be  summoned  would  depend 
upon  the  rules  of  the  common  law  ;  "  and  by  the  common 
law,"  said  Patterson,  J.,  "  the  court  may  direct  any  num- 
ber of  jurors  to  be  summoned  on  a  consideration  of  all  the 
circumstances  under  which  the  venire  is  issued."  ^ 

(2).  Under  American  Statutes, —  The  statutes  of  the 
several  States  fix  the  number  of  jurors  to  be  summoned  for 
the  term  or  for  each  week,  and  in  general  the  ofiicers  in 
drawing  such  panel  will  be  guided  thereby.  But  a  literal 
compliance  with  such  provisions  cannot  be  demanded.  Thus, 
upon  the  trial  of  an  indictment  for  murder,  the  objection 
that  the  panel  contained  the  names  of  forty-two  persons  in- 
stead of  thirty-eight  as  required  by  the  statute,  was  not 
allowed.  "The  objection,"  said  Sebastian,  J.,  "was  an 
error  of  which  the  State,  and  not  the  defendant,  had  the 
right  to  complain."  ^ 

(3).  Full  Panel  need  not  always  attend. —  The  parties 
cannot  insist  upon  the  attendance  of  the  full  panel  directed 
to  be  summoned.^     The  full  panel  is  rarely  summoned  or  in 

1  United  States  v.  Insurgents,  2  Dall.  335.  See  also,  United  States  v. 
Fries,  3  Dall.  515. 

2  Anderson  v.  State,  5  Ark.  444,  453 ;  Ramos  y.  Bringier,  2  Mart.  QS.  S.) 
192;  Debuys  v.  Mollere,  2  Mart.  (N.  S.)  625;  Prall  v.  Peet,  3  La, 
274,  280.  But  contra  see  Harrison  v.  State,  3  Tex.  App.  558;  Burfey  v. 
State,  3  Tex.  App.  519;  Jones  v.  State,  3  Tox.  App.  575;  Calthorp  v. 
Newton,  Cro.  Jac.  647.  In  Louisiana  it  is  provided  by  statute  th.it  it 
shall  not  be  deemed  a  good  cause  of  challenge  to  the  array,  that  a  num- 
ber of  jurors  actually  drawn  at  anytime  is  not  the  exact  number  re- 
quired by  law.    E.  S.  La.  1876,  §  2130. 

3  Odom  V.  Gill,  59  Ga.  180;  State  v.  Lovenstein,  9  La.  An.  313;  Pvol- 
land  V.  Com.,  82  Pa.  St.  306,  321 ;  Sands  v.  Com.,  21  Gratt.  871 ;  State  v. 
Brown,  12  Minn.  538;  State  v.  Stephens,  13  So.  Car.  285;  State  v.  Klinser. 
46  Mo.  224.  But  see  Flower  v.  Livingston,  12  Mart.  681.  In  Anon..  1 
Bro.  (Penn.)  200,  it  is  stated  that  "  all  the  persons  who  may  be  indicted 
will  be  entitled  to  their  challenges  out  of  the  whole  panel;  if  one 
single  juror  neglects  to  attend,  in  consequence  of  being  illegally  sum- 


7»i  SI  M.MOXIXG  AND  ENFORCING  ATTENDANCE.      [CH.  VI. 

atlondiiiK'c,  l)ut  tlio  eoui't  never  awards  a  special  venire  to 
till  the  deficiency,  unless  the  business  of  the  term  demands 
it.' 

(4).  In  Case  of  Persons  jointh/  indicted. —  Persons 
jointly  indicted,  who  elect  to  be  jointly  tried,  cannot  de- 
mand a  more  numerous  panel  tlian  would  be  awarded  in  the 
case  of  a  single  defendant.- 

§  80.  Special  Venire  in  Capital  Cases. —  (1).  When 
f/ranfed. —  The  statutes  of  many  of  the  States  provide  for 
the  summons  of  a  jury  by  a  special  venire  in  capital  cases. 
'Phis  is  in  the  nature  of  a  privilege  to  the  accused.  Some 
of  the  sttitutes  expressly  provide  that  such  special  venire 
shall  issue  upon  the  demand  of  the  accused  ;  in  which  case 
it  is  plain  that,  if  the  prisoner  permits  a  jury  to  be  formed 
from  the  regular  panel,  he  cannot  afterwards  object  to  it  as 
illegally  constituted  ;^  and  this  would  seem  to  be  generall}" 
true,  whether  such  special  venire  is  to  issue  upon  the  demand 
of  the  accused  or  otherwise.* 

(2.)  Horv  drawn. — The  defendant  cannot  demand  as  a 
right  that  he  shall  be  present  wdien  the  special  venire  is 
drawn  : ''   nevertheless  it  has   been  thought  proper  that  he 


nioued.  the  right  of  challenge  is  infringed. "'  Tliis  however  is  now  con- 
tradicted by  the  settled  rulfe  that  the  right  of  challenge  is  a  right  to  reject, 
and  not  a  right  to  select.  United  States  v.  Marchant.  4  Mason,  158;  .s.  c. 
U  Wheat.  48-2. 

'  Territory  v.  Doty,  1  Pinney  (Wis.)  396. 

-  State  V.  Phillips.  24  Mo.  475. 

3  Jefferson  v.  State,  52  Miss.  767. 

••  State  V.  Perry,  Busbee  (N.  C.)  330.  A  special  venire  cannot  be  de- 
manded in  a  case  where  the  offense  has  ceased  to  be  capital.  State  v. 
Bullock,  63  X.  C.  570.  Jnrors  excused  from  the  regular  panel  may  be 
properly  summoned  upon  the  special  venire.  Brennan  v.  State,  33  Tex. 
"266.  It  is  no  ground  for  a  challenge  to  the  array,  in  a  capital  case,  that 
it  does  not  appear  from  an  order  for  a  special  venire  facias  that  it  was 
made  in  the  case  of  the  prisoner.  It  is  sufficient  if  it  appear  that  it  was 
m■.v^e  at  the  term  at  which  the  trial  was  had.  State  v.  ^liuidi,  1  Winst. 
(N.  C.)  129.  The  court  relied  upon  the  common  law  rule  that  the  chal- 
lenge must  be  grounded  upon  some  default  of  the  sheriff  or  other  sum- 
moning officer. 

■■  Pocket  V.  State.  5  Tex.  App.  552;  Cordova  v.  State.  6  Tex.  App.  207; 
Handline  v.  State.  6  Tex.  App.  347,  358. 


§   80.]  SPECIAL  VENIRE  IN  CAPITAL  CASES.  77 

should  be  present.^  Although  the  statute  provides  that  the 
clerk  of  the  court  shall  make  the  drawmg,  this  maybe  done 
b}'^  a  deputy  sheriff  in  open  court. ^ 

(3.)  Grounds  for  Quashing. — It  is  no  ground  for  quash- 
ing a  special  venire,  that  one  of  the  jurors  named  therein  is 
an  alien.  Such  an  objection  is  good  only  as  a  challenge  to 
the  individual  juror .^  The  causes  for  which  a  venire  may 
be  quashed  must  be  either  some  fraudulent  misconduct  in 
the  summoning  officer,  or  some  violation  of  law  in  select- 
ing, drawing  or  summoning  the  jurors.* 

(4.)  J^on-attendance  of  /Special  Venire-men. — Although 
the  accused  cannot  insist  that  all  the  persons  named  in  the 
special  venire  shall  be  returned  into  court, ^  there  can  be  no 
doubt  that  in  a  case  of  neglect  by  the  sheriff  to  summon  a 
very  considerable  number  of  the  jurors,  as  directed  by  the 
special  venire,  the  court  may  quash  the  panel.  But  such 
neglect  must  be  affirmatively  shown.  The  court  will  not 
presume  neglect  from  the  fact  that  the  sheriff  has  returned 
a  considerable  number  as  not  found."  And  of  course, 
the  objection  to  the  panel  on  this  account  must  be  made 
before  proceeding  to  trial. ^  In  general  it  may  be  said  to 
be  true  that  the  accused,  by  going  to  trial  without  objection 
before  a  jury  impanelled  from  those  summoned  upon  a 
special  venire,  waives  an}^  irregularity  in  the  drawing,  sum- 
moning and  impanelling  of  such  jurors.^ 


1  Henry  v.  State,  33  Ala.  389;  Hall  v.  State,  40  Ala.  698. 

2  Pocket  V.  State,  .5  Tex.  App.  552. 

3  Dunah  v.  State,  44  Miss.  789. 
*/M(Z.,p.  796. 

5  Stewart  v.  State,  13  Ark.  720,  735;  Bates  v.  State,  19  Tex.  122;  .Jack- 
son V.  State,  4  Tex.  App.  292,  298. 

6  Logan  V.  State,  53  Miss.  431. 

'  Jackson  v.  State,  55  Miss.  530. 

**  .Jackson  v.  State,  4  Tex.  App.  292;  Gavigan  v.  State,  55  Miss.  533. 
The  statute  of  Texas  prescribes  that  upon  the  issue  of  a  special  venin 
the  coui't  shall  caution  the  sheriff  to  summon  onlj'  those  having  the 
qualifications  of  jurors,  stating  at  the  same  time  what  those  qualifica- 
tions are;  this,  however,  has  no  reference  to  the  summons  of  talesmen 
to  supply  a  deficiency  upon  such  special  venire.  Dill  v.  State,  1  Tex.. 
App.  279. 


78  SUMMONING  AND  ENFORCING  ATTENDANCE.     [CH.  VI. 

§  81.  Special  Venire  upon  Default  of  Jurors. —  (!)• 
W'/ien  ordered. —  Statutes  are  found  in  nearly  every  State, 
authorizing  the  court  to  direct  the  .sunnnons  of  jurors  forth- 
with, when  from  any  cause  there  are  no  members  of  the  regu- 
lar i)anel  in  attendance,  from  which  a  juiy^  may  be  formed. 
Ill  some  States  the  formality  of  drawing  must  be  observed, 
wiiile  in  others  the  court  may  direct  the  jurors  to  be  taken 
from  the  countv  at  large.  It  is  obvious  that  this  lack  of 
jurors  may  arise  from  a  variety  of  causes.  The  officers 
charged  with  the  duty  of  making  the  selection  or  drawing 
may  have  neglected  or  refused  to  perform  their  duty ;  the 
lists  of  jurors  may  have  been  seized,  lost,  or  destroyed  ; 
the  array  may  have  ])een  successfully  challenged,  and  the 
panel  quashed.  ^  It  cannot  be  permitted  that  circumstances 
like  the  foregoing  should  leave  the  court  without  the  neces- 
sary machinery  for  the  transaction  of  business,  and  there- 
fore ample  provision  is  made  for  this  emergency.  ^ 

(2).  Whether  after  Discharge  of  Regular  Panel. —  All 
the  jurors  of  a  regular  panel  for  a  term  having  been  dis- 
charged from  further  attendance,  this  has  been  held  to  be 
*'  an  entire  absence  of  jurors  of  the  regular  panel,"  which 
authorizes,  under  the  statute,  the  issue  of  a  special  venire  to 
supply  the  want.  ^  But  the  better  opinion  would  seem  to  be 
that  a  court  can  not  thus  capriciously  break  up  the  regular 
panel,  and  relegate  the  decision  of  a  party's  rights  to  the 
unsatisfactory  array  of  jurors  which  a  special  venire,  exe- 
cuted forthwith,  is  apt  to  produce.  An  absence  of  jurors 
caused  by  the  discharge  of  the  panel  would  seem  to  differ 
radically  from  a  failure  to  appear,  caused  by  a  default  of 

1  A  statute  which  provides  that  upon  the  quashing  of  a  panel,  by  rea- 
son of  the  allowance  of  a  challenge  to  the  array  by  the  defendant,  the 
oourt  shall  have  power  to  award  a  venire  returnable  forthwith  for  the 
trial  of  the  cause,  will  not  by  implication  extend  the  power  of  the  court 
in  this  behalf  to  the  case  of  a  panel  quashed  upon  a  challenge  to  the  ar- 
ray by  the  State.     Williams  v.  Com.,  91  Pa.  St.  493. 

-  Kussel  V.  Stitte,  53  Miss.  367;  Trembly  v.  State,  20  Kan.  116;  People 
V.  Stuart,  4  Cal.  225;  People  v.  Vance.  21  Cal.  400;  People  v.  Williams. 
43  Cal.  344;  People  v.  Devine,  46  Cal.  46;  People  v.  Davis,  47  Cal.  93. 

3  State  V.  McCartey,  17  Minn.  76;  Blemer  v.  People,  76  111.  265;  Keed 
V.  State,  15  Ohio,  217. 


§81,]  SPECIAL  VENIRE  ON  DEFAULT  OF  JURORS.  79 

the  officers  charged  with  the  driiwiug  and  summoning.  ^ 
(3).  In  the  Absence  of  the  Regular  Jury. —  While  the 
jury  are  absent  in  the  jury  room  considering  their  verdict, 
the  court  may  order  the  impanelling  of  a  jury  summoned 
forthwith  for  the  trial  of  another  cause,  under  the  ordinary 
statute  conferring  power  upon  a  trial  court  to  summon 
jurors  upon  a  special  venire  when  the  business  of  the  court 
requires  it.^ 

(  4) .  Jurors  must  he  summoned  in  prescribed  Mode. —  The 
jurors  must  be  summoned  in  the  manner  provided  by  law. 
If  the  statute  prescribes  that  such  jurors  shall  be  drawn  by 
the  clerk,  who  shall  thereupon  issue  a  venii^e  to  the  sheriff, 
the  court  cannot  omit  the  drawing,  and  in  the  first  instance 
issue  a  venire  to  the  sheriff  directing  him  to  summon  a  cer- 
tain number  of  jurors.^  But  it  matters  not  that  the  sum- 
mons was  more  formal  than  required  by  law  ;  for  example, 
that  the  jurors  were  summoned  upon  a  venire,  when  by 
statute  the  verbal  order  of  the  judge  was  sufficient.* 

(5).  Variance  between  Order  and  Copy. —  It  is  no  ground 
of  objection  to  the  regularity  of  the  summons,  that  a  vari- 
ance exists  between  the  terms  of  the  order  issued  to  the 
sheriff,  and  the  copy  of  the  order  upon  which  the  sheriff 
made  his  return.  Such  a  variance,  as  where  the  order  recited 
*'  that  a  sufficient  number  of  petit  jurors  have  not  appeared," 
but  the  copy  read  "  no  petit  jury  having  been  drawn  for  the 
present  term,"  can  have  no  possible  l)eari!ig  upon  the  selec- 
tion of  the  jurors  summoned.^ 


1  Mosseauv.  Veeder,  2  Oreg.  113;  Judge  v.  State,  8  Ga.  173. 

-  Evarts  v.  State,  48  lud.  422;  Winsett  v.  State,  57  Ind.  26;  Merrick  v. 
State,  63  Ind.  327.  The  defendant  in  a  criminal  prosecution  is  not  enti- 
tled to  a  continuance  upon  tlie  failure  of  a  jury  of  the  regular  panel  to 
agree  upon  a  verdict  in  his  case.  The  court  may,  under  such  a  statute, 
impanel  a  new  jury  iustanter  for  his  trial.  Pierce  v.  State,  67  Ind.  354; 
Vanderwerker  v.  People,  5  Wend.  530. 

3  Gladden  v.  State,  13  Fla.  623;  Gropp  v.  People,  67  111.  154;  Lincoln 
V.  Stowell,  73  111.  246;  Rockford  Ins.  Co.  v.  Nelson,  75  111.  548;  Wright 
V.  Stuart,  5  Blackf.  120;  Hight  v.  Langdon,  53  Ind.  81. 

4  State V.  Coleman,  8  So.  Car.  237. 
^  People  V.  Jones,  24  Mich.  215. 


,80  SUMMONING  AND  ENFORCING  ATTENDANCE.     [CH.  VI. 

(  6).  Jurors  summoned  from  tJie  "  Bodi/  of  the  County.'''' 
—  Upon  an  order  to  summon  jurors  "  from  the  body  of  the 
county/"  the  sheriff  and  his  deputies  sulKciently  comply 
with  its  terms,  if  jurors  are  taken  from  as  many  townships 
as  can  reasonably  be  expected  within  the  time  limited  for 
making  the  return.  It  is  not  necessary  that  some  jurors 
should  be  summoned  fronr  each  township  of  the  county.^ 
In  executing  a  special  venire  for  the  return  of  a  jury  in- 
stanter,  the  sheriff  is  not  obliged  to  go  out  into  the  country 
and  summon  every  man  he  meets  having  the  qualifications 
of  a  juror,  until  the  desired  number  is  obtained.  He  may 
resort  to  the  assessment  roll  for  the  preparation  of  his  list, 
and  direct  his   deputies  to  summon  those  selected  by  him."^ 

§  82.  Substitute  for  Sheriff  as  Returning  Officer. — 
(1).  Coroner  when  Sheriff  Incompetent. —  At  common  law 
the  coroner  was  authorized  to  perform  the  duties  of  the 
sheriff  in  summoning  a  jury,  when  from  any  cause  the  lat- 
ter was  incompetent  to  act ;  ^  but  incompetency  does  not 
include  disability.  Thus,  the  coroner  is  not  authorized  to 
summon  a  jury  in  case  of  the  inability  of  the  sheriff  to  act 
by  reason  of  sickness  or  other  cause.*  As  stated  in  an  old 
case,  "  the  coroners  are  not  the  proper  officers  of  the  court 
in  any  other  case  but  where  the  sheriff  is  absolutely  improper  ; 
not  where  there  is  no  sheriff  at  all.  If  the  sheriff  die,  the 
coroner  cannot  execute."  ^ 

The  court,  being  satisfied  that  the  sheriff  is  grossly  igno- 
rant of  the  duties  of  his  office,  although  there  is  no  evidence 
of  partiality  or  corruption,  may  direct  his  deputy  to  perform 
the  duties  of  this  officer  in  the  summoning  of  tales  jurors.'' 
There  is  no  informality  in  this  ;  for,  pro  hac  vice,  the  dep- 
uty stands  in  court  clothed  with  the  authority  of  the  princi- 
l)al,  answering  for  him,  and   delegated  to  perform  all  the 

^  State  V.  Arthur,  39  Iowa.  G31. 

-  Cavanah  v.  State,  5G  Mis^s.  299.     See  also,  People  v.  Colt.  3  Hill,  432. 

■5  Co.  T.itt.  158.  a.;  Rex  v.  Smith,  2  Shower,  288;  Rex  v.  Dolby,  1  Dow. 

&Ry.  145;  s.c.,2  Barn.  &  Cress.  104. 

*  State  V.  Monk,  3  Ala.  415. 

^  Rex  V.  Warrington,  1  Salk.  152. 

6  Kellv  V.  State,  3  Sni.  &  M.  518. 


§   82.]  SUBSTITUTE  FOR  RETURNING  OFFICER  81 

duties  connected  with  the  court,  which  the  law  authorizes 
or  requires  the  sheriff  to  do.^  It  has  been  held,  however, 
that  the  court  cannot  properly,  hi  advance  of  any  objection 
by  the  parties,  proceed  to  examine  the  sheriff  for  causes  of 
bias,  and  having  ascertained  the  same  to  exist,  direct  a  venire 
to  the  coroner.  Nevertheless,  the  remedy  of  the  aggrieved 
party  is  not  obvious.  It  is  not  in  a  challenge  to  the  array 
of  the  coroner,  there  being  nothing  to  show  partiality  or 
default  on  the  part  of  this  officer.^ 

There  being  two  sheriffs,  one  of  whom  is  a  party  to  the 
suit,  the  venire  may  be  executed  by  the  other,  although  the 
return  is  made  in  the  name  of  both.'^  It  is  only  when  the 
other  is  shown  to  be  incompetent,  that  the  process  will  be 
directed  to  the  coroner.'* 

Statutes  are  common,  authorizing  the  court  when  the 
sheriff  or  his  deputies  are  disqualified,  to  direct  the  coroner 
or  any  other  disinterested  person  to  summon  the  jurors.^ 
And  under  some  statutes  this  disqualification  of  the  sheriff 
need  not  be  formally  ascertained.  It  is  sufficient  if  a  party 
will  file  an  affidavit  stating  partiality,  prejudice,  consan- 
guinity, or  interest  on  the  part  of  the  sheriff.^ 

(2).  Elisors  when  Coroner  Incompetent. —  Under  the 
English  practice,  as  the  effect  of  a  challenge  to  the  array 
would  be  to  postpone  the  trial,  it  became  usual  for  the 
plaintiff,  who  anticipated  that  such  a  challenge  might  be  ef- 
fectually made,  to  apply  to  the  court,  and  suggest  the  ob- 

1  Com.  V.  Carson,  3  Phila.  219,  223;  Conner  v.  State,  25  Ga.  515. 

2  People  V.  Welch,  49  Cal.  174. 

3  Rex  V.  Warrington,  1  Salk.  152;  Rich  v.  Piayer,  2  Shower,  286. 
^  Reg.  V.  Delme,  10  Med.  198. 

5  Phillips  V.  State,  29  Ga.  105 ;  Hanna  v.  People,  86  111.  243 ;  State  v. 
Hardin,  46  Iowa,  623.  A  statute  providing  that  "  if  the  case  requires  it," 
the  court  may  appoint  two  citizens  for  tlie  summons  of  jurors,  was  lib- 
erally interpreted.  '•  If  from  any  cause,"  said  the  court  "  bias  or  par- 
tiality, sickness,  absence,  death,  removal  or  resignation  from  office, 
refusal  to  obey  the  order  to  summon  special  jurors,  or  if  for  any  other 
sufficient  cause  the  court  determine  that  the  circumstances  of  the  case 
require  it,  they  may  appoint  two  citizens  to  perform  the  duty  mentioned 
in  the  act."     Com.  v.  Carson,  3  Phila.  219. 

6  Harriman  v.  State,  2  G.  Greene,  271;  State  v.  Hai'din,  46  Iowa,  623. 

(6) 


82        SUMMONING  AND  ENFORCING  ATTENDANCE   [CH.  VI. 

jectioii  to  the  sheriff;  and  if  this  was  not  dcniotl,  the  court 
directed  its  process  to  the  coroners  of  the  county  instead  of 
the  slieriff.  And,  in  ease  the  coroners  also  were  liable  to 
objection,  and  this  was  suggested  to  the  court,  then  the 
court  appointed  certain  persons  of  its  own  nomination, 
called  elisors,  to  whom  the  process  should  be  directed.  And 
Lord  Tenterden,  speaking  in  1821,  stated  this  to  be  the 
practice  at  that  time.^  In  such  a  case,  the  elisors  are  the  par- 
ticular officers  of  the  court,  acting  under  its  special  author- 
ity, as  distinct  from  the  coroner  and  sheriff,  who  are  the 
general  officers  of  the  law  ;  and  although  a  challenge  to  the 
array  might  be  made  in  the  case  of  a  jury  summoned  by 
the  coroner,  as  well  as  when  summoned  by  the  sheriff,  it 
was  not  allowed  when  the  elisors  acted.'- 

§  83.  Fine  upon  non-attending  Jurors. —  (1-j  Under 
the  English  Practice. —  By  the  jury  act  of  6  Geo.  IV.,  c. 
50,  any  juror  having  been  duly  summoned,  who,  without  a 
reasonable  excuse  (to  be  proved  by  oath  or  aflSdavit),^  shall 
fail  to  appear,  or,  having  appeared,  shall  wilfully  withdraw 
himself,  may  be  fined  as  the  court  shall  think  proper.^  On 
the  trial  of  an  issue  out  of  chancery,  Avherc  certain  special 
jurors  failed  to  attend,  they  were  each  amerced  in  the  sum 
of  fifty  pounds.^  Ten  pounds,  however,  seems  to  have 
been  the  fine  usually  imposed  upon  special  jurors  in  such 
cases. ^  The  rule  was  adopted  under  this  act  that  personal 
service  was  not  required  before  a  fine  could  be  imposed. 
It  was  sufiicient  if  the  bailiff  swore  that  the  summons  was 
left  with  some  person  at  the  usual  abode  of  the  juror. 
"That  person,"  said  Baron  Hullock,  "is,  for  the  pur- 
poses of  the  act,  the  agent  of  the  juror  ;  and  it  was  his  duty 

1  Kex  V.  Edmunds,  4  Barn.  &  Aid.  471,  480. 

2  Kex  V.  Edmunds,  4  Barn.  &  Aid.  471,  480,  citing  Co.  Litt.  1.58.  a. 

8  It  is  not  the  practice  for  the  court  to  hear  counsel  on  behalf  of  per- 
sons it  has  thus  fined.     Carne  v.  Nicoll,  3  Dowl.  11.5. 

*Ib.,  §38. 

«  Wood  V.  Thompson,  1  Car.  &  M.  98.  See  also  Carne  v.  Nicoll,  3 
Dowl.  115;  Layburn  v.  Cri.sp,  8  Car.  &  P.  397;  Reg.  v.  Fay,  Irish  Rep. 
6  C.  L.  436. 

*  Ex  parte  Clarges,  1  Y.  «&  J.  401,  note. 


§   84.  ]  PROVISIONS  AGAINST  FRAUD.  83 

to  apprise  his  principal  of  the  summons,  or  if  that  were 
impossible,  to  attend  and  explain  to  the  court  the  reason 
for  non-attendance."^  But  this  severe  rule  does  not  ap- 
pear to  have  been  uniformly  followed.^ 

It  was  held  to  be  a  good  excuse  that  the  person  sum- 
moned had  let  his  house  and  was  abroad,  of  which  facts  the 
summoning  officer  was  informed.^  Likewise,  where  it 
appeared  that  the  summons  had  by  mistake  been  left  at 
some  other  place  than  the  a])ode  of  the  juror ;  but  the  court 
would  not  remit  the  fine  until  the  summoning  officer  had 
explained  upon  oath  how  the  mistake  had  happened.* 

(2.)  Under  American  Practice. —  The  statutes  of  the 
several  States  quite  uniformly  provide  that  the  juror  may 
be  personally  notified  to  attend,  or  that  a  copy  of  the  sum- 
mons may  be  left  at  his  residence  with  a  competent  person. 
The  attendance  of  jurors  is  secured  in  every  State  by  fine 
for  a  default,  without  reasonable  excuse,  after  due  notice 
to  appear.  This  fine  varies  greatly  in  amount,  from  the 
limit  of  five  dollars  in  Connecticut,^  to  five  hundred  dollars  in 
Nevada.^  Twenty  dollars  appears  to  be  a  very  common 
limit,  although  in  many  States  it  is  considerably  above  this 
sum. 

(3.)  In  Case  of  Exempt  Persons. —  A  person  exempt 
from  jury  service  should  come  into  court  and  show  his  ex- 
cuse upon  receiving  a  summons  to  serve.  He  may  not,  rely- 
ing upon  such  exemption,  refuse  or  neglect  to  appear.^ 

§  84.  Provisions  against  Fraud  in  Procuring  Jurors. 
— (1.)  Statutes  against  Frauds  of  Officers. —  The  impor- 
tance of  securing  the  return  of  an  impartial  jury  was  early 
recognized  in  the  constitutions  of  two  States.  In  the  Plan 
of     Government    of    the    Constitution    of    Pennsylvania, 


1  Ex  parte  Clarges,  1  Y.  &  J.  399. 

2  Ibid.,  400,  note. 

3  Ex  parte  Ford,  1  Y.  &  J.  401. 

*  Ex  parte  Brown,  1  Y.  &  J.  401. 
5  G.  S.  Conn.  1875,  ch.  X.,  §  11. 
«  Comp.  L.  Nev.  1873,  §  1061. 
^  People  V.  Holdridge,  4  Lans.  511. 


84  SUMMONING  AND  ENFORCING  ATTENT)ANCE.     [CU.  VI. 

adopted  in  the  year  177(),  the  mailer  is  noticed  as  follows; 
*'  It  is  recommended  to  the  legislature  of  this  State  to  pro- 
vide by  law  against  every  corruption  in  the  choice,  return, 
or  appointment  of  juries."  ^  Ample  provision  is  made  in 
this  respect  by  the  statutes  of  nearly,  if  not  quite,  all  of 
the  States.  Fines  in  large  amounts  may  be  assessed  against 
officers  on  conviction  of  fraud  in  the  discharge  of  their 
duties  in  the  selection,  drawing  and  return  of  jurors,  while 
in  several  States  this  offense  is  punished  by  imprisonment 
in  the  penitentiary.^ 

(2).  jStatafes  against  Professional  Jurors. —  Statutes 
aimed  at  professional  jurors  and  others  seeking  to  force 
themselves  into  the  jury  box,  are  found  in  some  of  the 
States.  Thus,  a  section  of  the  Revised  Statutes  of  Mis- 
souri provides  that  "if  any  person  shall  ask,  procure,  or 
offer  to  procure,  for  himself  or  for  another,  a  place  upon 
any  jury,  or  shall  seek  to  have  himself  or  another  placed  up- 
on the  list  of  regular  jurors,  or  summoned  as  a  talesman, 
he  shall  be  deemed  guilty  of  a  misdemeanor."  ^  In  certain 
other  States  this  conduct  is  punishable  by  a  fine,*  but  in 
Michigan  it  simply  renders  the  offender  ineligible  for  jury 
service."'' 

§  85.  Procuring  Jury  in  Justice's  Court. —  The  pro- 
ceedings by  which  a  jur}^  is  obtained  in  a  justice's  court,  are 
purely  statutory  and  must  be  strictly  pursued.  If  the 
statute  provides  that  the  names  of  those  summoned  shall  be 
wi-itten  upon  slips  of  paper,  folded  and  placed  in  a  box, 
from  which  the  justice  shall  draAv  six,  or  such  further  num- 
ber as  shall  be  necessary  after  the  allowance  of  challenges, 
the  justice  can  not  proceed  to  organize  a  ]\n'y  when  there  are 
only  five  persons  present  in   answer  to  the  summons  of  the 

^  §  25.     Tliis  identical  provision  is  found  in  the  constitution  of  Ver- 
mont, adopted  in  tiie  following  year.     Id.,  Plan  of  Govt.,  §  22. 

2  K.  S.  So.  Car.  1873,  p.  519,  §  5;  Stat.  Teun.  1871,  §  4804;  Code,  Ala. 
1876,  §  4122. 

3  R.  S.  1879,  §  1432. 

<  R.  S.  m.  1880,  ch.  78,  §  13;  Comp.  L.  Kan.  1879,  §  2991 ;  2  Ind.  Rev. 
1876,  p.  392,  §  80. 
5  Comp.  L.  Mich.  1871,  §5978. 


§   85.]  PEOCURING  JURY  IN  JUSTICE'S  COURT.  85 

constable.  If  the  statute  provides  that  in  such  a  case  the 
justice  shall  issue  another  venire  to  procure  sufficient  jurors 
to  render  the  selection  of  six  possible,  this  must  be  done 
upon  the  request  of  one  of  the  parties.  The  refusal  of  such 
a  request  calls  for  a  reversal  of  the  judgment  rendered  in 
the  case,  regardless  of  the  consideration  whether  the  party 
making  the  request  has  been  prejudiced  or  not.^ 

^  Bristtane  v.  Macomber,  5G  Barb.  375. 


86  TALESMEN.  [CH.  VII. 


CHAPTER    YII. 


OF    TALESMEN. 

SECTION. 

90.  When  suiunioiied. 

91.  Early  History  of . 

92.  Necessity  of  Summoning  to  be  avoided. 

93.  Summoned  to  supply  a  Deficiency  only. 

94.  Summoned  in  tlie  Discretion  of  tlie  Sheriff. 

95.  May  be  selected  from  Names  on  Jury  List. 

96.  Number  to  be  summoned  Discretionary. 

97.  To  sit  only  in  Particular  Cases. 

98.  May  be  assembled  in  Anticipation  of  Emergencies. 

99.  Summoning  Otlicer  not  to  interrogate. 

100.  Qualifications  of. 

101.  Challenge  to  Array  of. 

102.  Statutes  against  Professional  Jurors. 

103.  Talesmen  in  case  of  Special  Juries. 

104.  Talesmen  in  Federal  Courts. 

§  90.  Wlien  sumnioncd. — If  a  sufficient  number  of 
jurors  returned  by  the  sheriff  do  not  appear,  the  deficiency 
may  be  made  up  by  impanelling  bystanders  present  in 
court. ^  But  this  is  not  the  only  case  in  which  a  deficiency 
may  occur.  The  panel  present  nuiy  be  reduced  by  claims 
of  exemption,  or  by  challenges  of  the  parties  ;  and  it  is 
more  frequent!}-  to  supply  a  deficiency  from  the  latter  cause, 
that  resort  to  this  process  becomes  necessary.  These  ju- 
rors are  distinguished  from  those  of  the  regular  panel  as 
tales  de  circumstantibus,  or,  more  commonly,  simply  tales- 

>  A  tales  c&n  ncxev  be  ordered,  unless  there  be  a  deficiency  of  jurors; 
otlierwise  a  new  trial  may  be  granted  for  this  cause.  United  States  v. 
Watkins,  3  Cranch  C.  C.  578. 


§   !)2.]         NECESSITY  or  SUMMONING  TO  BE  AVOIDED.  87 

men.  Whether  a  proper  emergency  exists  for  the  summons 
of  talesmen,  is  for  the  court  to  decide  according  to  the  nat- 
ure and  amount  of  the  business  pending.^ 

§  91.  Early  History  of  the  Practice. —  According  to  Mr. 
Forsyth,  the  first  mention  of  the  tales  occurs  in  Stat.  Hen. 
VIII,  c.  6,  where  it  is  enacted  that  in  civil  causes  the  jus- 
tices, upon  request  made  b}  the  party,  plaintiff  or  defend- 
ant, shall  have  authority  to  command  the  sheriff  to  name 
and  appoint,  as  often  as  need  shall  require,  so  many  of  such 
other  able  persons  of  the  country  then  present  at  the  assizes, 
or  7iisi  prhis,  as  shall  make  up  a  full  jury,  which  persons 
shall  be  added  to  the  former  panel,  and  their  names  annexed 
to  the  same.  And  by  4  &  5  Phil.  &  Mary,  c.  7,  the  same 
rule  was  extended  to  criminal  trials  and  actions  upon  penal 
statutes.^  In  this  country  the  power  to  summon  talesmen 
has  been  regarded  as  usually  incident  to  courts  of  record.* 

§  92.  Necessity  of  Suniinoning  to  l>e  Avoided. —  The  ne- 
cessity for  the  summoning  of  talesmen  is  to  be  avoided  when 
possible,  for  the  evident  reason  that  they  are  selected  with 
less  deliberation  than  jurors  of  the  regular  panel,  and  are 
generally  inferior  in  intelligence  and  probity.*  In  the  or- 
ganization of  the  jury,  the  })roper  practice  is  to  exhaust  the 
original  panel  before  any  talesmen  are  called  in  the  case. ' 
And  where  the  panel  for  the  first  week  of  a  term  was  ex- 
hausted without  procuring  a  jury,  members  of  the  regular 
panel  for  the  next  week,  who  happened  to  be  present  in 
court  before  the  day  stated  in  their  summons,  were  held  to 
have  been  properly  directed  to  take  their  places  upon  the  jury 
instead  of   the  sheriff  being  directed  to  summon  talesmen.** 

1  Territory  v.  Doty,  1  Piniiey,  396. 

2  Forsyth,  Trial  by  Jury,  172. 

3  Zeely  v.  Yansen,  2  .Johns.  386. 

*  State  V.  Koss,  30  La.  An.  1151;  Barker  v.  Bell,  49  Ala.  284;  Clough  v. 
State,  7  iS^eb.  320;  Lewis  v.  State.  3  Head,  127 ;  People  v.  Lee,  17  Cal.  76. 

^  Barker  v.  Bell,  49  Ala.  284.  Although  attachments  are  out  against 
the  absent  jurors,  the  court  is  not  obliged  to  delay  the  impanel- 
ling of  the  jury,  but  may  order  talesmen  to  be  summoned  for  this  pur- 
pose.     Barthet  v.  Estebene,  5  La.  An.  315. 

^  Lambertson  v.  People,  5  Park.  C.  R.  200.  See  also  Smith  v.  State,  55 
Ahi.  1. 


88  TALESMEN.  [CH.  VII. 

Althouirh  tiilesmen  have  Ixtii  suninioncd,  an  effort  should 
he  made  to  procure  a  jury  from  those  sunniioucd  upon  the 
original  veiihr ;  and  for  this  })urposc  the  names  of  such 
persons  should  be  kept  separate  from  those  supernumerary 
jurors  summoned  upon  a  subsequent  venire,  or  called  in  as 
talesmen.^  But  no  error  is  committed  where  it  appears 
that  the  names  were  not  kept  separate,  that  a  full  jury- 
could  not  have  been  procured  from  the  original  panel,  and 
that  in  fact,  the  i)risoner  had  the  opportunity  of  excepting 
or  rejecting  all  of  the  original  venire.- 

§  93,  Siinmioued  to  supply  a  I>eticieiicy  of  Jurors  only. 
—  In  a  former  chapter  we  have  stated  the  better  view  to 
be,  that  the  court  is  not  vested  with  the  power  to  summon 
jurors  upon  a  special  venire  after  the  discharge  of  the  regu- 
lar panel. ^  For  the  reasons  there  stated  it  would  seem 
clear  upon  principle,  that  a  panel  of  jurors  ought  not  to  be 
summoned  as  talesmen  to  supply  a  total  default  of  regular 
jurors.'*  Thus,  where  the  regular  j^anel  is  absent  in  the 
jury  room,  making  up  their  verdict  in  a  case,  the  court  can- 
not call  another  case  for  trial,  and  proceed  to  impanel  a 
jury  composed  entirely  of  bystanders.^  However,  where  a 
portion  only  of  the  regular  jurors  are  so  absent,  talesmen 
may  be  summoned  to  form  a  jury  with  the  remainder  of  the 
panel. ^  If  there  remains  but  one  of  the  regular  panel, 
talesmen  may  be  summoned  to  form  a  jury  with  this  one  ;  ^ 
and  if  this  one  be  challenged  off  in  the  process  of  impanel- 
ling, a  jury  may  nevertheless  be  formed  from  the  talesmen.^ 

1  State  V.  Benton.  2  Dev.  &  B,  19G;  State  v.  Xash,  8  Ircd.  L.  35;  State 
V.  Lytle.  5  Ired.  L.  58. 

2  State  V.  Lytle,  supra.  Compare  Bayoujon  v.  Criswell,  5  Martin 
(N.  S.)  232.  Other  irregularities,  without  prejudice,  are  no  ground  for  a 
venire  de  novo.     State  v.  Nash,  snpra. 

^  Ante,  §81,  subsec.  2. 

*Kogers  v.  State.  33  Ind.  543;  Williams  v.  Com.,  91  Pa,  St.  493. 
Contra,  Suttle  v.  Batie,  1  Iowa,  141  ;  Hunt  v.  Scobie,  6  B.  Mon,  469. 

*  Rogers  v.  State,  .mpra. 

6  Bradley  v.  Bradley,  45  Ind.  G7;  Ilondeau  v.  New  Orleans  Imp.  Co., 
15  La.  IGO. 

7  Fuller  V.  State,  1  Blackf.  G3;  Emerick  v.  Sloan,  18  Iowa,  139. 

*  Fuller  V.  State,  supra. 


§    95.]  SELECTED  FROM  JURY  LIST.  89 

There  can  be  no  objection  to  the  summoning  of  talesmen, 
where  the  reguUir  panel  has  been  exhausted  without  pro- 
curing a  single  juror. ^ 

§  94.  Siiiiimoned  in  the  Discretion  of  the  Sheriff. —  It 
will  be  seen  from  the  statutes  in  a  previous  section,^  that 
talesmen  were  early  selected  in  the  discretion  of  the  sheriff, 
as  indeed  were  all  jurors  at  common  law.  It  is  doubtless 
true  that  in  this  country  the  court  is  powerless  to  control 
this  discretion,  unless  authorized  by  statute.^  Statutes  of 
this  description  however  are  not  uncommon.  The  flagrant 
abuses  arising  from  the  summoning  of  bystanders,  in  addi- 
tion to  the  dangerous  power  of  the  sheriff  in  making  the 
selection,  have  called  forth  legislation  in  many  of  the  States 
designed  to  check  both  evils.* 

§  95.  May  he  selected  from  Names  on  Jury  List. —  The 
sheriff  complies  with  the  order  of  the  court  to  summon 
duly  qualified  jurors  "  from  the  county  at  large,"  by  taking 
the  lists  of  grand  and  petit  jurors  at  the  ofiice  of  the  county 
court,  and  copying  therefrom,  in  the  order  of  names  as  they 
stand  upon  such  list,  the  number  ordered  by  the  court  to  be 
summoned.^  This  step,  although  unnecessary,  conduces  to 
the  impartiality  of  the  body  of  jurors  thus  secured.  The  pris- 
oner certainly  cannot  complain  that  the  sheriff  chooses  to  put 
a  check  upon  his  own  discretion  in  the  execution  of  such  sum- 
mons. Upon  the  same  principle,  where  the  court,  in  order- 
ing the  sheriff  to  summon  additional  jurors  for  an  adjourned 
term,  used  in  the  order  the  superfluous  words  "  to  be  drawn 
by  the  clerk  in  the  usual  way,"  which  order  was  duly  exe- 
cuted, although  the  court  neither  had  authority  to  order  the 
clerk  to  make  this  drawing,  nor  could  it  properly  control  the 

estate  v.  Reeves,  11  La.  An.  686:  State  v.  Desmouchet,  32  I.a.  An. 
1^41. 

*§91. 

8  People  V.  Cummino^s,  3  Park.  C.  R.  343,  353;  Capehait  v.  Stewart, 
80  N.  C.  101.  But  where  the  sheriff  chooses  to  submit  to  the  dictation 
of  the  court  in  this  matter,  a  party  must  show  some  prejudice  arising 
from  this  fact,  before  he  can  complain  of  it.     Ihid. 

<Seej9os«,  §  102. 

6  People  V.  Colt,  3  Hill,  432.     See  also  Cavauah  v.  State,  56  Miss.  299. 


9)  TALESMEN.  [ciI.   VII. 

di.srrotion  of  the  sheriff  in  the  seh'ction,  nevertheless  the 
prisoner  was  hekl  to  have  no  jnst  ground  of  ol)jection  to  the 
jurors  thus  arrayed.  The  pith  of  the  i)risoner's  objeetion 
was,  as  Gould,  J.  remarked,  that  "the  jury  were  but  too 
fair,  and  too  fairly  sunnnoned,  to  suit  the  emergencies  of  the 
case."  ' 

§  96.  Number  to  be  siiininoued  Discretionary. —  Where 
there  is  such  a  deficiency  in  jurors  summoned  upon  the  reg- 
ular i)anel  for  the  trial  of  a  criminal  case,  as  is  contemplated 
by  statutes,  the  number  of  persons  to  be  summoned  to  sup- 
ply such  deficiency,  unless  specified  by  such  statutes,  rests 
in  the  sound  discretion  of  the  trial  court.'-^ 

§  97.  To  sit  only  in  Particular  Cases. —  Talesmen  should 
sit  only  in  the  particular  casein  which  they  are  summoned  ;^ 
that  they  sat  in  a  sul)sequcnt  case,  however,  is  an  irregular- 
ity which  cannot  be  taken  advantage  of  where  the  objection 
is  for  the  first  time  made  after  verdict.* 

§  98.  May  be  assembled  in  Anticipation  of  Emergen- 
cies.—  On  the  principle  that  the  court  has  power  to  arrange 
the  order,  and  to  provide  for  thei)robal)le  necessities  of  the 
business  of  the  court,  it  has  been  held  proper  for  the  trial 
judge  to  direct  the  sheriff,  in  anticipation  of  a  deficiency 
of  jurors  and  in  advance  of  calling  the  cases,  to  bring  in  a 
sufiicient  number  of  qualified  persons  to  act  as  talesmen 
whenever  a  deficiency  may  occur. '^  Such  i)ersons  are  not 
summoned  as  talesmen  in  any  particular  case,  but  as  citi- 

'  People  V.  Cummings,  3  Park.  Cr.  R.  343,  304. 

2  People  V.  Colt,  3  Hill,  432;  McGuffee  v.  State,  17  Ga.  407;  State  t. 
Lamon,  3  Hawks,  l75;  State  v.  Buckner,  2.5  Mo.  167,  171 ;  Bnrk  v.  State, 

2  Har.  &  J.  426 ;  Dayton  v.  State,  19  Ohio  St.  584 ;  Colt  v.  People,  1  Park. 
Cr.  R.  611;  Com.  v.  Eaton,  8  Phila.  428;  Com.  v.  Twitchell,  1  Brewst. 
551. 

3  Wallace  v.  Colvunbia,  48  Me.  436;  Shields  v.  Niagara  Sav.  Bank, 

3  Hun,  477;  s.  c.  5  Th.  &  C.  (N.  Y.)  585. 

<  Howland  v.  Gifford.  1  Pick.  42,  note;  Wallace  v.  Columbia,  48  Me. 
430. 

«  5  Bac.  Abr.  Juries  D.  337;  State  v.  Lamon,  3  Hawks,  175;  United 
States  V.  Loughery,  13  Blatch.  267;  State  v.  Kane,  32  La.  An.  999;  State 
V.Allen,  47  Conn.  121.  The  sheriff,  or  coroner  when  discharging  the 
duties  of  that  officer,  may  of  his  own  motion  specially  request  the  attend- 


I 


§    100,]  QUALIFICATIONS  OF.  91 

zcns  to  attend  upon  the  business  of  the  court.  Whenever 
talesmen  are  necessary,  they  may  be  taken  from  this  body.^ 

§  99.  Siiinmoniiig'  Officer  may  not  interrogate.  —  The 
summoning  officer  ought  never  to  interrogate,  for  causes  of 
bias,  jurors  whom  he  has  been  directed  to  bring  in  upon  a 
tales  or  special  venire  to  supply  a  deficiency  in  the  regular 
panel.  Such  conduct,  however,  although  it  leads  to  a  rejec- 
tion of  those  who  admit  the  existence  of  preconceived 
opinions,  while  reprehensible,  is  not  obnoxious  to  a  statute 
defining  the  challenge  to  the  panel  as  "a  material  de- 
parture from  the  forms  prescribed  by  law  in  respect  to  the 
drawing  and  return  of  the  jury."  ^  Chief  Justice  Marshall 
on  the  trial  of  Aaron  Burr,  having  lucidly  expressed  his 
opinion,  as  to  what  opinions  formed  in  the  case  would  be  suffi- 
cient to  disqualify  a  juror,  upon  the  award  of  a  tales  said, 
that  ' '  the  marshal  would  not  summon  a  man  whose 
opinions  he  might  have  previously  understood,  although  he 
ought  not  to  interrogate  him  on  the  subject ;  that  he  would 
have  good  reason  for  not  placing  upon  the  panel  any  man, 
who  should  inform  him  that  his  opinions  were  strongly  in 
conflict  with  the  test  established  by  the  court."  " 

§  100.  Qnalitieations  of. —  Talesmen  should  possess  the 
statutory  qualifications  of  regular  jurors  ;    but,  like  them, 

ance  of  persons  to  serve  as  tale.stneii  if  neeessar\'.  Rex.  v.  Dolby, 
2  Barn.  &  Cress.  104.  The  statutes  of  a  large  number  of  the  States  now 
provide  that  talesmen  may  be  taken  from  the  bystanders  or  from  the 
body  of  the  county. 

1  Bird  V.  State,  14  Ga.  43.  This  course  was  highly  commended  as  be- 
ing more  likely  to  secure  a  trial  by  "  honest,  uncommitted,  unbought 
and  unmerchantable  men,  than  by  the  professional,  loafing  jurymen  who 
hang  about  some  of  our  court  houses  —  material  to  be  used,  if  ever  it 
should  happen  that  prosecutors,  or  prosecuting  officers,  or  defendants  or 
defendants'  counsel,  or  sheriffs  are  to  be  found  so  forgetful  of  every 
honorable  obligation  as  to  bring  them  into  the  jury  box."  Ibid.^  p.  53. 
See  also,  State  v.  Dale,  8  Oreg.  22!) ;  United  States  v.  Loughery,  13  Blatch. 
267;  O'Connor  V.  State,  9  Fla.  215. 

2  State  V.  McCartey,  17  Minn.  76. 

3  Trial  of  Aaron  Burr,  vol.  1,  p.  421.  Upon  the  summons  of  talesmen  in 
a  capital  case,  the  sheriff  ought  not  to  interrogate  them  as  to  whether 
they  have  conscientious  scruples  against  finding  a  verdict  of  guilty  where 
the  punishment  is  capital.     Joy  v.  State,  14  Ind.  139. 


92  TALESMEN.  [CII.   Vll. 

they  will  he  presumed  competent  until  the  contrary  is 
shown. ^  And,  as  in  the  case  of  regular  jurors,  objection 
must  be  taken  to  them  for  want  of  qualitications  l)efore  they 
are  sworn. - 

§  101.  Clialloiijfo  to  Array  of  Talosineii. —  In  some  of 
the  States  the  court  is  directed  to  order  the  drawing  of  a 
sutficient  number  of  names  by  the  api)r{)priate  officer,  to  sup- 
ply a  deticiency  of  jurors  for  whom  a  special  venire  issues 
to  the  sheriff.^  Should  the  court  disregard  this  method  of 
selecting,  and  order  the  sheriff  to  summon  the  desired  num- 
ber of  talesmen  according  to  his  discretion,  the  proper 
remedy  is  a  clialleno;e  to  the  array  of  (aJef>,  and  not  an  ob- 
jection  to  the  jurors  individually.  This  challenge,  like  that 
to  the  regular  panel,  will  be  considered  as  waived,  unless 
taken  at  the  proper  time/ 

§  102.  Statutes  against  Professional  Jurors. —  The  fre- 
quent necessity  of  summoning  talesmen  has  had  the  effect 
of  breedinof  in  every  community  a  disrei)utable  class  of 
loiterers  about  court  rooms,  having  no  other  purpose  than 
to  be  selected  for  jury  service.  So  conspicuous  has  this 
evil  become  of  late  years,  that  these  persons  have  been 
dubbed  with  the  distinctive  title  of  "  professional  jurors." 
With  the  evident  design  of  averting  the  necessity  of  sum- 
moning those  who  are  technically  bystanders,  the  statutes 
of  many  of  the  States  provide  that  talesmen  may  be  sum- 
moned from  the  l)ystanders,  or  from  the  count}'  at  large, 
as  the  court  may  direct.     In  other  States  the  statutes  ef- 

1  Y(^lin  Jim  v.  Territorj',  1  Wash.  Ten'.  76;  O'Connor  v.  State,  9  Fla. 
215;  I.ee  v.  Lee,  71  N.  C.  139.  It  is  not  a  positive  objection  to  a  tales 
juror  that  his  name  does  not  appear  on  the  jury  list  as  made  out  by  the 
county  autliorities.  It  is  sufficient  tliat  at  the  lime  of  service  he  is  pos- 
sessed of  the  quahfications  required  by  hiw.  Lee  v.  Lee,  supra;  Mc- 
Guffle  V.  State,  17  Ga.  497. 

2  Com.  V.  Gee,  G  Cush.  174. 

'  Tlie  simple  verbal  direction  of  the  court  to  make  this  drawing-  is  held 
sufficient  without  a  formal  writ  of  venire.  State  v.  Williams,  2  Hill  (S.  C.) 
381 ;  State  v.  Stephens,  11  So.  Car.  319 ;  Roberts  v.  State,  5  Tex.  App.  141. 

*  Gropp  V.  People,  67  111.  154 ;  Mueller  v.  Rebhan,  94  111.  142.  A  formal 
demand  that  a  venire  shall  issue  seems  to  answer  the  purpose  of  a  chal- 
lenge to  the  array.     Passenger,  &c.  R.  Co.  v.  Young,  21  Ohio  St.  518. 


4 

i 


§    103.]  IN  CASE  OF  SPECIAL  JURIES.  93 

fectually  exclude  these  persons,  by  expressly  providing  that 
in  no  case  shall  talesmen  be  taken  from  the  bystanders.^ 

The  Texas  jury  law  of  1876  provides  that  tales  jurors 
shall  not  be  summoned  from  persons  found  in  the  court- 
house or  yard,  if  procurable  elsewhere.'  But  that  a  tales- 
man was  so  summoned  does  not  constitute  a  statutory 
cause  of  challenge.  A  disposition,  therefore,  is  evident 
to  construe  this  provision  as  directory  merely,  a  breach  of 
it  affording  no  ground  of  complaint,  unless  it  tended  to  de- 
prive one  accused  of  crime  of  a  fair  and  imi)artial  trial. ^ 
The  same  law  provides  that  at  the  commencement  of  each 
term  of  court  at  which  jury  eases  may  be  tried,  the  judge 
shall  administer  to  the  sheriff  and  his  deputies  an  oath  bind- 
ing these  officers,  among  other  things,  to  select  according  to 
the  best  of  their  skill  and  judgment  "discreet,  sensible, 
impartial  men,  when  required  to  summon  jurors  not  se- 
lected by  the  jury  commissioners."  A  conviction  will  be 
reversed  when  it  appears  from  the  record  that  the  oath  as 
prescribed  by  statute  was  not  administered  to  the  sheriff  or 
his  deputies  acting  under  him."* 

§  103.  Talesmen  in  Case  of  Special  Juries. —  Unless 
expressly  prohibited,  the  court  has  the  same  power,  under 
statutes  regulating  the  selection  of  special  juries,  to  sum- 
mon talesmen  to  complete  the  panel,  as  in  the  case  of  com- 
mon juries.^ 

1  Cal.  Code  Civ.  Proc,  §  227;  Comp.  L.  Nev.  1873,  §  1222;  Comp.  L. 
Utah,  1876,  §  1385;  Comp.  L.  Ariz.,  cli.  47,  §  30;  K.  S.  Ohio,  1880, 
§  5173;  Miller's  E.  C.  la.  1880,  §  2775.  As  to  penalty  for  seeking  jury- 
service,  see  ante,  §  84,  sub.  sec.  2. 

■''This  does  not  apply  to  persons  found  in  the  court  house  square,  or  in 
houses  fronting  upon  the  same.  Baker  v.  State,  4  Tex.  App.  223;  Mat- 
thews V.  State,  6  Tex.  App.  23.  Nor  to  one  who  was  in  court  when  the 
tales  was  ordered,  but  was  subsequently  summoned  while  in  the  street. 
Johnson  v.  State,  4  Tex.  App.  268. 

3  Matthews  v.  State,  6  Tex.  App.  23;  Frye  v.  State,  7  Tex.  App.  94. 

■*  Hicks  v.  State,  5  Tex.  App.  488;  Samschen  v.  State,  8  Tex.  App.  45. 

5  Rex  V.  Hunt,  4  Barn.  &  Aid.  430;  Snook  v.  Southvvood,  Ryan  & 
Moo.  429;  Gatliff  v.  Bourne,  2  Moo.  &  Rob.  100;  Atty.  Gen.  v.  Par- 
sons, 2  Mee.  &  W.  23;  Rex  v.  Hill,  1  Car.  &  P.  667;  Rex  v.  Tipping, 
1  Car.  &  P.  668;  Burou  v.  Denman,  1  Exch.  769;  People  v.  Tweed,  50 
How.  Pr.  286;  Anon.,  2  Dall.  382;  Rankin  v.  Goddard,  4  Allen  (N.  B.) 


94  TALESMEN.  [CH.  VII. 

§  104.  Talesmoii  hi  Federal  Courts. —  Section  804  of 
the  Revised  Stiitutes  provides:  "  When,  from  challenges 
or  otherwise,  there  is  not  u  petit  jury  to  determine  any  civil 
or  criminal  cause,  the  marshal  or  liis  deputy  shall,  by  order 
of  the  court  in  which  such  defect  of  jurors  happens,  re- 
turn jurymen  from  the  b3^standers  sufficient  to  complete  the 
panel."  The  process  of  procuring  jurors  in  the  Federal 
courts  has  been  hitely  very  materially  changed  by  an  act  of 
Congress  which  we  have  hitherto  noticed.^  This  act  pro- 
vides that  all  jurors  in  the  courts  of  the  United  States, 
"grand  and  petit,  including  those  summoned  during  the 
session  of  the  court,  shall  be  publicly  drawn  from  a  box," 
etc.,  specifying  thereafter  how  the  l)ox  shall  be  filled 
with  the  names  of  qualified  pesons.  It  has  been  held  that 
the  calling  of  jurors  from  the  bystanders,  sutHcient  to  com- 
plete a  panel  under  the  order  of  the  couit,  is  not  a  summon- 
ing of  jurors  in  the  sense  in  which  the  term  "  summoned  " 
is  used  in  the  act  of  1879.  The  section  of  the  Revised 
Statutes  previously  noticed  remains,  therefore,  unaffected  by 
this  act.^  This  view  is  believed  to  be  unsound.  An  as- 
sumption of  the  power  of  summoning  bj-standers,  instead 
of  persons  whose  names  have  been  regularly  drawn  from 
the  box,  opens  the  door  to  the  very  abuses  which  the  act  of 
1879  was  designed  to  prevent. 

155;  Atlee  v.  Shaw,  4  Yeate.«,  236;  Kex  v.  Perry,  5  Term  Rep.  45.3; 
Sparrow  v.  Turner,  2  Wils.  366;  Demi  v.  Evaul,  1  N.  J.  L.  283;  Hub- 
ley  V.  White,  2  Yeates,  133. 

1  Act  of  June  30, 1879;  ante,  §  49. 

2  United  States  v.  Rose  (U.  S.  Circuit  Ct.  So.  Dist.  Ohio,  March,  1881, 
Swing,  D.  J.),  6  Fed.  Rep.  136. 


§    108.]       SERVICE  OF  THE  PANEL  ON  THE  ACCUSED.  95 


CHAPTER  VIII. 


OF  THE  SERVICE  OF  THE  PANEL  ON  THE  ACCUSED. 


SECTION. 

108.  A  matter  of  Grace  at  Common  Law. 

109.  But  later  guaranteed  by  Statute  in  England. 

110.  And  also  in  the  United  States. 

111.  Policy  of  these  Statutes. 

112.  Whether  these  Statutes  Mandatory. 

113.  Whether  List  must  be  demanded. 

114.  Not  entitled  to  List  of  Talesmen. 

115.  Nor  to  object  where  more  is  done  than  Law  requires. 

116.  Jury  not  necessarily  formed  from  the  List  served. 

117.  Imperfections  in  List. 

118.  Objections  to  Caption  and  Form  of  List. 

119.  Waiver  of  Eights  as  to. 

120.  Computation  of  Time  as  to  Service. 

121.  Amendment  of  Sheriff's  Return  to  show  Service  of  List. 

122.  Record  must  show  that  no  List  was  furnished. 

§  108.  A  Matter  of  Grace  at  Common  Law. —  At  com- 
mon law  a  copy  of  the  panel  was  not  granted  until  the 
accused  had  pleaded/  and  then  only  by  the  grace  of  the 
court. ^  Of  this  the  accused  were  on  one  occasion  reminded, 
when,  after  receiving  a  copy  of  the  panel,  complaint  was 
made  by  one  of  them  that  they  had  not  time  enough  to  in- 
quire into  the  jury ;  whereat  the  Lord  Chief  Justice  ob- 
served :  "  Look  you,  we  are  not  bound  to  do  this,  but  you 
have  it  as  soon  as  you  have  pleaded."  The  importunities 
for  time  to  look  after  the  jury  were  unheeded,  and  the  de- 
fendants were  directed  to  take  notice  that  their  trial  would 

1  Grahme's  Case,  12  How.  St.  Tr.  665,  666. 
"  1  East  P.  C.  112 ;  Foster  C.  L.  228. 


J»6  SERVICE  OF  THE  PANEL.  [CH.  VIII. 

begin  punctually  at  eiirlit  o'clock  on  the  followinir  morning.^ 
§  109.  But  lator  jj^iiarantoed  by  Statute  in  Kni^Iand.  — 
However,  by  a  statute  of  Will.  III,'^  regulating  trials  in  cases 
of  treason  and  misprision  of  treason,  it  was  provided  that 
accused  persons  should  have  "  copies  of  the  panel  of  jurors 
who  are  to  try  them,  duly  returned  by  the  sheriff,  and 
delivered  unto  them  and  ever}"  of  them  so  accused  and  in- 
dicted respectively,  two  days  at  least  before  he  or  they  shall 
be  tried  for  the  same."  ^ 

§  110.  And  also  in  the  United  States. —  The  right  of 
the  prisoner  to  have  a  copy  of  the  panel  of  jurors  who  are 
to  pass  upon  his  case  is  conceded  by  statute  in  many  States. 
In  some  States,  the  right  is  restricted  to  those  indicted  for 
a  crime  the  punishment  whereof  is  capital ;  *  but  in  others, 
we  find  this  grace  of  the  law  extended  to  the  accused  in 
cases  where  the  punishment  is  less  severe ;  nevertheless  the 
offense  must  be  of  a  serious  nature.^  Thus,  by  the  statute 
of  Missouri  it  is  granted  where  the  punishment  is  death, 
imprisonment  for  life,  or  an  unlimited  term  of  years,  in 
the  penitentiary.^ 

§  111.  Policy  of  these  Statutes. —  The  policy  of  these 
statutes  seems  to  be  that  where  life  is  at  stake,  or  in  other 
cases  of  a  serious  nature,  the  prisoner  shall  be  allowed 
every  facility  for  making  his  challenges.  This,  no  doubt, 
is  greatly  promoted  by  the  prisoner  having  previous  knowl- 


1  Gralime's  Case,  12  Ho^v.  Sr.  Tr.  669. 

2  7  Will.  III.,  c.  3,  §  7. 

3  This  Statute  was  supplemented  by  that  of  7  Anne,  c.  21,  §  11,  requir- 
ing the  list  of  jurors  to  be  delivered  to  persons  so  accused  ten  days  be- 
fore the  trial.  See  Rex  v.  Gordon,  2  Doug.  569.  One  accused  of  felony 
only  cannot  demand,  as  of  right,  a  copj^  of  the  panel.  Reg.  v.  Dowl- 
ing.  3  Cox  C.  C.  509. 

*  See  Code  Ala.  1876,  §  4782;  G.  S.  N.  H.  1867,  ch.  243,  §  1 ;  R.  C.  Miss. 
1880,  §  3057;  R.  S.  Ohio,  1880,  {j§  7271.  7273. 

5  See,  however,  Stat.  Tenn.,  1871,  §  5212;  R.  S.  111.  1880,  ch.  38,  §  421. 

«R.  S.  Mo.  1879,  §§  1900,  1904.  See  also,  R.  S.  Me.  1871,  ch.  134,  §  14; 
R.  S.  La.  1876,  §  992;  R.  S.  1879,  ch.  55,  §  1.  It  is  clear  that  the  pris- 
oner can  have  no  right  to  a  list  of  the  jurors  in  any  other  case,  than  that 
provided  by  statute.  Reg.  v.  Dowling,  3  Cox  C.  C.  509;  Driskill  v. 
State,  45  Ala.  21. 


§   113.]  WHETHER  LIST  MUST  BE  DEMANDED.  97 

edge  of  the  names  of  the  persons  vvho  are  to  try  him. ^  It 
is  a  valuable  right  which  the  court  cannot,  against  his  con- 
sent, withhold  from  the  accused.^ 

§  112.  Whether  these  Statutes  Mandatory. —  Some  of 
these  statutes  are  evidently  mandatory,  requiring  the  list  to 
be  served,  whether  demanded  or  not.  The  provision  of  the 
code  of  Alabama  would  seem  to  be  so.  It  reads  :  '<  If  the 
defendant  is  indicted  for  a  capital  offense,  and  is  in  actual 
contineraent,  a  copy  of  the  indictment  and  a  list  of  the 
jurors  summoned  for  his  trial,  including  the  regular  jury, 
must  be  delivered  to  him  at  least  one  entire  day  before  the 
day  appointed  for  his  trial."  ^ 

§  113.  Whether  List  must  he  demanded. —  Other  stat- 
utes, however,  provide  that  the  list  "  shall  be  delivered,"^ 
"shall  be  furnished;"^  that  the  accused  "  shall  have,"  ** 
"be  allowed,"^  or  "entitled"^  to  the  same.  Some  of 
these  terms  plainly  show  that,  unless  a  demand  is  made  for 
the  list,  the  prisoner  cannot  avail  himself  of  the  objection 
that  no  list  was  furnished.  The  requirement  of  the  Mis- 
souri statute  is  certainly  as  positive  as  any  of  the  foregoing, 
and  yet  the  prisoner  is  obliged  to  demand  the  list  if  he 
would  have  it.  "  It  is  simply  a  privilege,"  said  Wagner,  J., 
"  which  the  statute  extends  to  the  accused  for  his  benefit; 
and  if  he  does  not  make  the  demand  or  require  the  list,  he 
is  presumed  to  have  waived  it."  ^  However,  the  legislature 
of  Illinois  evidently  intended  similar  language  to  be  imper- 

1  However,  an  ignorant  person,  unable  to  read,  cannot  demand  that  the 
copy  of  the  panel  served  upon  him  shall  be  read  over  to  him,  and  served 
also  upon  his  counsel,  where  the  statute  requires  neither  of  these  steps. 
Aaron  v.  State,  39  Ala.  75. 

«  State  V.  Buckner.  25  Mo.  167. 

8  Code  Ala.  1876,  §  4872. 

*  R.  S.  Mo.  1879,  §  1904;  R.  S.  Ohio,  1880,  §  7273. 

»  R.  S.  111.  1880,  ch.  38,  §  421 ;  R.  S.  Me.  1871,  ch.  134,  §  14. 

6R.  S.  La.   1876,  §  992;  R,    C.  Miss.  1880,  §  3057. 

f  Rev.  Stat.  W.  Va.  1879,  ch.  55,  §  1. 

«  Gen.  Stat.  N.  H.  1867,  ch.  243.  §  1 ;  Stat.  Tenn.  1871,  §  5251. 

9  State  v.  Klinger,  46  Mo.  224,  227. 

(7) 


98:  SERVICE  OF  THE  PANEL.  [CH.  VIII. 

ative  without  any  demand  of  the  accused,  as  appears  from 
a  reading  of  the  whole  i)rovisi{)n.' 

Under  the  statute  of  Ahil)ania  noticed  in  the  preceding 
section,  it  is  quite  ol)vious  that  if  the  prisoner  is  not  in  ac- 
tual confinement,  he  is  not  entitled  to  a  copy  of  the  panel, 
•except  upon  application.^ 

§  114.  Not  entitled  to  List  of  Talesmen. —  After  an  ex- 
haustion of  the  panel  of  jurors  summoned  upon  a  special 
venire  in  a  capital  case,  the  accused  is  not  entitled  to  delay 
the  trial  by  a  demand  that  a  list  of  the  talesmen  summoned 
shall  be  served  upon  him  under  the  conditions  which  apply 
to  the  regular  panel .^ 

§  115.  Nor  to  object  where  more  is  done  than  Law  re- 
-qiiires. —  Nor,  having  been  furnished,  as  a  matter  of  grace, 
with  a  list  of  the  regular  jurors  for  the  term,  in  addition  to 
those  specially  summoned  for  his  trial,  can  the  prisoner 
■complain  of  defects  in  such  regular  list ;''  nor  that  the  list 
was  served  two  weeks  before  trial,  instead  of  two  days  as 
required  by  the  statute.^ 

§  116.  Jury  not  necessarily  formed  from  the  List 
served. —  The  prisoner,  however,  is  not  entitled  to  insist 
upon  the  attendance;  of  all  the  jurors  named  in  the  list  with 
which  he  is  provided  ;"  nor,  unless  the  statute  so  directs,  to 

^ "Every  person  charged  with  treason,  murder  or  other  felonious 
crime,  shall  be  furnished,  [iievious  to  his  arraignment,  with  a  copy  of 
Ihe  indictment,  and  a  list  of  the  jurors  and  witnesses.  In  all  other  cases 
"he.  h\\i\\\,  at  his  request  or  the  request  of  his  cownseZ,  be  furnished  with  a 
copy  of  the  indiciment  and  a  list  of  the  jurors  and  witnesses."  R.  S. 
111.  1880,  ch.  38,  §421. 

2  Bill  V.  State,  29  Ala.  34. 

3  Gardenhirev.  State.  G  Tex.  App.147;  Harris  V.  State,  6  Tex.  App.  97; 
Johnson  v.  State.  4  Tex.  App.  208;  Drake  v.  State,  5  Tex.  Ajtp.  049; 
Sharp  V.  Slate,  0  Tex.  Ai)p.  050;  State  v.  Buckiier,  25  Mo.  107,171; 
Green  v.  State,  17  Fla.  CGI;  State  v.  Price.  3  Mo.  App.  580;  State  v. 
Reeves,  11  La.  An.  085;  State  v.  Bunger,  14  La.  An.  401;  State  v. 
Bennett,  14  La.  An.-OSl;  State  v.  Henry.  15  La.  An.  297;  State  v.  Gua- 
ter,  30  La.  An.  539;  Colt  v.  People,  1  Park.  Cr.  R.  Oil.  But  see  People 
V.  Coyodo,  40  Cal.  580. 

*  Clianey  v.  State,  31  Ala.  342. 

«  State  V.  Toby,  31  La.  An.  750. 

«  Jackson  v.  State,  4  Tex.  App.  292,  298;  Walker  v.  State,  0  Tex.  App. 


§    117.]  IMPERFECTIONS  IN  LIST.  99 

have  tliera  called  in  any  particular  order.  The  places  of 
absentees  maybe  summarily  supplied  by  talesmen,  as  where 
any  panel  is  exhausted.^ 

§  117.  Imperfections  in  List. —  The  Supreme  Court  of 
Arkansas  considered  the  statute  requiring  a  service  of  the 
list  of  jurors  upon  the  prisoner  within  a  certain  time  to  be 
imperative;  that  the  prisoner  might  rest  upon  his  right  to 
have  a  perfect  list.  Therefore,  where  the  list  contained  an 
error  in  the  christian  name  of  one  of  the  jurors,  and  the 
prisoner  made  objection,  before  the  jury  were  impanelled, 
that  the  list  furinshed  was  imperfect,  it  was  held  that  the 
court  erred  in  forcing  him  to  trial  without  furnishing  a  per- 
fect list  under  the  conditions  of  the  statute.^  But  this  has 
been  denied,  and  the  better  rule  would  seem  to  be  that  the 
trial,  under  such  circumstances,  may  proceed  ;  and,  unless 
some  prejudice  is  shown  to  have  resulted  from  a  trilling 
error  of  this  kind,  the  judgment  will  be  allowed  to  stand.^ 

It  is  no  oi)jection  to  the  list  served  that  it  does  not  set 
out  the  christian  names  of  the  jurcn's  in  full,  but  only  the 
initial  letters  of  the  same,  at  least  in  the  absence  of  evidence 
showing  that  the  prisoner  was  deceived  or  misled  thereby.* 
Upon  the  same  principle,  it  will  be  a  sufficient  description  of 
the  juror,  although  the  name  of   the  township  from  which 

576;  Logan  v.  State,  53  Miss.  431;  State  v.  Kane,  32  La.  An.  999;  State 
V.  Ho  well,  3  La.  An.  50;  Stale  v.  Joliuston.  11  La.  An.  422;  Stale  v. 
Kennedy,  11  La.  An.  479;  State  v.  Rouutree,  32  La.  An.  1144.  The  cou- 
fitruction  pnc  upon  the  Texas  statute  cJiiec^tin';  ihe  sniuinoning  of  jurors 
upon  a  special  venire  for  the  trial  of  capital  eases,  prevents  the  court  from 
excusing  any  such  juror  until  called  in  ilie  case.  Kobles  v.  Siale,  5  Tex. 
App.  346;  Bejarauo  v.  State,  6  Tex.  App.  265.  See  also  Parsons 
V.  Slate,  22  Ala.  50.  But  contra.  State  v.  Kane,  32  La.  An.  999;  State 
y.  White,  7  La.  An.  531;  State  v.  Koiailree,  32  F.a.  An.  1144. 

1  Stewart  v.  State,  13  Ark.  720,  735;  Bates  v.  Siate,  19  Tex.  122;  State 
V.  White,  7  La.  An.  531 ;  State  v.  Bennett,  14  La.  An.  651 ;  State  v.  Fer- 
ray,  22  La.  An.  423. 

2  Stewart  V.  State,  13  Ark.  720,  736. 

"  Goodhue  v.  People,  94  111.  37;  State  v.  I'urner,  25  La.  An.  573;  Mc- 
Carty  v.  State,  26  xMiss.  299;  State  v.  Kane,  32  La.  An.  999;  State  v. 
Dubord,  2  La.  An.  732;  Swofford  v.  State,  3  Tex.  App.  76.  In  Alabama 
such  defects  are  cured  by  star.nce.     Il.dl  v.  S^ace,  51  Ala.  9. 

■*  Aikin  v.  State,  35  Ala.  39lt;  Bill  v.  Slate,  29  Ala.  34.  . 


100  SERVICE  OF  THE  PANEL.  [CH.  VIII. 

he  is  drawn  is  abbreviated  in  the  list,  provided  that  such 
abbreviation  is  perfectly  intelligible.^ 

The  prisoner,  under  the  statute  of  Texas,'  is  entitled  to  a 
list  of  the  persons  actually  summoned.  It  is  not  sufficient 
that  a  list  of  those  drawn  is  served.^  But  this  particu- 
larity is  not  required  in  Louisiana.*  Nevertheless  the  Su- 
preme Court  of  this  State  held  that  the  officers  did  not  com- 
ply with  the  statute  by  serving  upon  the  prisoner  a  list  of 
one  hundred  and  fifty-six  persons,  of  whom,  to  the  knowl- 
edge of  the  officers  at  the  time  of  service,  one  hundred 
and  twent}'  had  either  been  previously  excused,  or  were  ex- 
empt from  jury  duty,  or  were  not  summoned.  "A  list,'* 
said  King,  J.,  "  containing  other  names  than  those  of  the 
jurors  who  are  really  to  be  presented  on  the  trial,  necessa- 
rily tends  to  embarrass  the  accused  in  his  searches  for  in- 
formation, and  to  confuse  him  in  preparing  his  challenges, 
and  thus  defeats  the  ends  of  the  law.  Such  a  list  is  not  a 
compliance  with  either  the  letter  or  the  spirit  of  the  statute, 
although  it  may  at  the  same  time  contain  the  names  of  all 
the  jurors  who  are  to  pass  on  the  prisoner's  trial."  ^ 

§  118.  Objections  to  Caption  and  Form  of  List. —  The 
service  of  the  bare  list  of  jurors  upon  the  accused  will  in 
general  be  sufficient,  if  he  has  other  means  of  assurance 
that  such  is  the  list  of  jurors  for  his  trial.  Therefore,  tech- 
nical objections  to  the  form  of  the  caption  are  not  favored.^ 
Thus,  in  one  case  it  was  objecied  that  the  copy  of  the  panel 
served  showed  neither  the  name  of  county,  the  court,  nor 
the  case  for  which  it  was  drawn.  "But,"  said  the  court, 
"  it  was  served  at  the  same  time  with  the  copy  of  the  indict- 
ment in  which  all  these  things  appear.  There  was  no  rea- 
son for  repeating  them  upon  what  is  only  intended  by  the 
statute  to  be  a  mere  list  of  the  jur3^"  ' 

»  State  V.  Brooks,  30  N.  J.  L.  356. 
«  Pascb.  Dig.,  §  302-2. 

8  Harrison  v.  Stato.  3  Tex.  App.  558;  Drake  v.  State,  5  Tex.  App.  649. 
♦  State  V.  Ouidry,  28  La.  An.  631. 
5  State  V.  Howell,  3  La.  An.  50,  52. 

•State  V.  Ward,  14  La.  An.  673;    State  v.  Brooks,  30  N.  J.  L.  356; 
Aikin  v.  State,  35  Ala.  399.  ^  State  v.  Brooks,  supra. 


§121,]     AMENDMENT  OF  RETURN  SHOWING  SERVICE.  101 

§  119.  Waiver  of  Rights  as  to. —  By  going  to  trial  with- 
out objection,  the  defendant  waives  any  informality  or  in- 
accuracy in  such  list  known  to  him  to  exist ;  ^  or  the  omis- 
sion to  furnish  such  list ;  '^  or  that  it  was  not  furnished 
within  a  reasonable  time  prior  to  the  trial.^  So,  where  the 
statute  entitled  the  prisoner  to  demand  that  the  list  of 
jurors  should  be  served  upon  him  forty-eight  hours  before 
trial,  and  he  agreed  with  the  State's  attorney  that  his  trial 
might  proceed  within  less  than  forty-eight  hours,  this  was 
held  to  be  an  implied  waiver  of  his  rights  under  the  statute 
to  a  list  of  jurors  forty-eight  hours  before  trial.* 

§  120.  Computation  of  Time  as  to  Service. —  Where,  as 
is  common  in  the  statutes  of  the  several  States  relating  to 
this  matter,  the  statute  provides  that  the  prisoner  shall  be 
served  with  a  copy  of  the  panel  a  certain  number  of  days 
before  trial,  in  computing  this  time  the  days  of  delivery  and 
trial  are  excluded.^  Fractions  of  days  cannot  be  counted. 
A  day,  in  contemplation  ot  law,  comprises  all  the  twenty- 
four  hours,  beginning  and  ending  at  twelve  o'clock  at  night. ^ 
Where  the  statute  which  directs  the  service  of  a  copy  of  the 
panel  prescribes  no  time  in  which  it  shall  be  done,  it  would 
be  proper  to  allow  him  a  reasonable  length  of  time  for  an 
examination  of  the  same ;  but  the  accused  cannot  demand  a 
continuance  for  this  purpose.^ 

§  121.  Amendment  of  Sheriff's  Return  to  show  Service 
of  List. —  Where  the  sheriff's  return  on  the  venire  in  a 
capital  case  does  not  show  that  a  copy  was  served  on  the 
prisoner  one  entire  day  before  the  day  appointed  for  the 


J  State  V.  Shay,  30  La.  An.  114;  Bell  v.  State,  59  Ala.  55;  Pressley  v. 
State,  19  Ga.  192. 

2  State  V.  Fisher,  2  Xott  &  McCord,  261,  264;  State  v.  Cook,  20  La.  An. 
145;  State  V.  Jackson,  12  La.  An.  (579;  State  v.  Hernandes,  4  La.  An. 
379;  Peterson  v.  State,  45  Wis.  535. 

8  Crafty.  Com.,  24  Gratt.  602,  609. 

*  State  V.  Waters,  1  Mo.  App.  7;  s.  c,  62  Mo.  196. 

*  This  is  the  settled  construction  under  the  English  statute.  See  1 
East  P.  C.  112. 

«  State  V.  McLendou,  1  Stew.  195;  Robertson  v.  State,  43  Ala.  325. 
^  Craft  V.  Com.,  24  Gratt.  602. 


102  SERVICE  OF  THE  PANEL.  [CII.   A  III. 

trial,  as  required  by  statute,^  the  defect  may  be  supplied  by 
amendment,  when  a  motion  is  made  to  (juasli  the  venire  oii 
account  of  it.'^ 

§  122.   Record  must  show  that  no  List   was  furnished. 

—  If  the  prisoner,  when  the  case  is  called,  announces  him- 
self ready  for  trial,  and  makes  no  objection  that  he  has  not 
been  furnished  with  a  list  of  the  jurors  as  required  by  law,  in 
the  absence  of  an  affirmation  in  the  l)ill  of  exceptions  that 
no  list  was  furnished,  the  mere  silence  of  the  record  on  the 
subject  will  not  afford  a  ground  for  reversal.^  The  Su- 
preme Court  of  Alabama  at  one  time  held  that,  the  accused 
being  in  actual  confinement,  the  record  nmst  show  affirma- 
tively that  a  list  of  the  jurors,  as  required  by  law,  was 
served  upon  the  prisoner;^  that  his  counsel  were  supplied 
with  a  copy  was  not  sufficient.'^  But  all  these  decisions  are 
now  overruled.^ 

1  Eev.  Code,  Ala.  §  4171. 

2  Gray  V.  State,  55  Ala..  86;  Washington  v.  State,  8  Tex.  App.  377. 
In  Woodsides  v.  State,  2  How.  (Miss.)  6G5,  it  was  held  that  the  return  of 
the  sheriff  that  he  had  served  the  prisoner  with  a  correct  list  of  the  jury 
could  not  be  collaterally  questioned. 

8  Benton  v.  State,  30  Ark.  328,  344;  Freel  v.  State,  21  Arli.  212;  Daw- 
son V.  State,  29  Ark.  116 ;  Durrah  v.  State,  44  Miss.  789 :  Logan  v.  State, 
50  Miss.  269;  Lewis  v.  State,  51  Ala.  1;  Mitchell  v.  State,. 58  Ala.  417; 
Paris  V.  State,  36  Ala.  232;   Rash  v.  State,  61  Ala.  89. 

*Lacy  v.  State,  45  Ala.  80;  Bugg  v.  State,  47  Ala.  50;  Flanagan  v. 
State,  46  Ala.  703 ;   Morgan  v.  State,  48  Ala.  65. 

0  Robertson  v.  State,  43  Ala.  325. 

6  See  Lewis  v.  State,  51  Ala.  1;  Mitchell  v.  State,  58  Ala.  417,  420; 
Rash  v,  State,  61  Ala.  89. 


CH.  IX.]         CHALLENGE  TO  THE  ARRAY.  103 


CHAPTER  IX. 


OF  THE  CHALLENGE  TO  THE  ARRAY. 
SECTION. 

125.  Two  General  Divisions  of  Challenges. 

126.  At  Common  Law. 

127.  Under  the  English  Consolidated  Jury  Act. 

128.  Not  allowed  for  Bias  or  Misconduct  of  Particular  Persons. 

129.  Difference  between  the  Mode  of  Selecting  Jurors  at  Commou, 

Law  and  nnder  American  Statutes. 

130.  Challenge  for  Partiality  of  Summoning  Officer. 

131.  Consanguinity  or  Affinity  of  Summoning  Officer. 

132.  Summoning  Officer  a  Party  or  the  Advocate  of  a  Party  to  the 

Suit. 

133.  "  Nomination  "  of  .Jurors  by  a  Party. 

134.  Irregularities  in  Selecting  the  UeneraFList. 

135.  Continued  — Eule  in  New  England. 

136.  Failure  to  record  the  General  List. 

137.  Informality  in  the  Certificate  of  Selection. 

138.  Objection  to  the  Officer  who  made  the  Selection. 

139.  Imperfections  of  the  Jury  List. 

140.  List  Incomplete  througli  Fraud. 

141.  Filling  and  re-filling  the  Jury  Wheel. 

142.  Custody  of  Jury  Wheei. 

143.  Irregularities  in  Drawing  the  Panel. 

(1.)  Statutes  Directory. 

(2.)  But  Essential  Provisions  must  be  followed. 

(3.)  Provisions  of  Particular  Statutes. 

144.  Persons  who  may  conduct  the  Drawing. 

(1.)  In  Case  of  Common  Juries. 

(2.)  In  Case  of  Special  or  Struck  Juries. 

145.  Time  of  Conducting  tiie  Drawing. 

146.  Irregularities  in  Summoning  the  Panel. 

(1.)  Process  of  Summoning  under  American  Statutes. 

(2.)  Defects  in  Venire  Facias  no  Ground  of  Challenge. 

(3.)  Objections  to  tlie  Clerl<  who  issues  the  Venire  Facias^ 

(4.)  Failure  to  issue  Venire  Facias. 

(5.)  Failure  to  summon  Particular  Persons  drawn. 


104  CHALLENGE  TO  THE  ARRAY,  [CH.  IX. 

(6.)  Failure  to  m:iko  Keturn. 
(7.)  Defects  in  JJeturn. 
(S.)  Time  of  niakiii<ij  Keturn. 
(9.)  Jury  .suinnioiu'd  l)y  Improper  OHlcer. 
(10.)  Objections  to  Particular  Persons  siunmoned. 
147.     Re-summoning  Members  of  Quashed  Panel. 

§  125.  Two  Gonoral  Divisions  of  Challcngros. —  "All 
questions  toucliing  the  formation  of  juries,"  said  Mr.  Jus- 
tice Coleridge  upon  an  important  occasion,  "  must  be  ex- 
amined by  the  judges  with  very  critical  eyes."  ^  This  ex- 
pression is  a  fair  illustration  of  that  solicitude  for  the  right 
of  the  subject  to  an  impartial  jury,  which  has  characterized 
the  English  L'iav  from  the  earliest  period  of  its  history. 
The  law  affords  ameans  to  this  end  in  the  right  of 
challenire.  This  right  is  of  a  two-fold  character :  first, 
the  right  to  challenge  the  whole  body  of  persons  assembled 
<at  a  term  or  session  of  court  to  do  duty  as  jurors  ;  second, 
the  right  to  challenge  particular  persons  who  are  called  to 
be  sworn  as  jurors  in  a  particular  case.  Hence  there  are 
two  general  divisions  of  challenges  :  1 .  Challenges  to  the 
array  ;  ^   2.  Challenges  to  the  polls. ^ 

§  126.  At  Common  Law. —  At  common  law  a  challenge  to 
the  ari'ay  lay  to  the  body  of  jurors  summoned  upon  the 
regular  panel  and  the  tales.*  It  was  an  exception  to  the 
whole  of  the  panel,  grounded  upon  the  partiality  or  default 
of  the  sheriff,  coroner,  or  other  oiBcer  making  the  return  ;  * 
and  this  was  the  only  ground  of  challenge  to  the  array  at 
common  law.^  There  were  two  forms  of  this  challenge: 
1.  Principal.  2.  To  the  favor.  The  distinction  between  these 
is  more  easily  stated  than  it  is  to  determine  in  which  class  a 
^ven    cause  of   challenge  should    bo  placed.     A  principal 

1  0"Connell  v.  P.eg.,  11  CI.  &  Fin.  353. 

*Co.  Litt.  15G.  a. 

3  What  would  constitute  a  good  objection  to  the  array,  will  not  avail 
upon  a  challenge  to  the  polls.  United  States  v.  Loughery,  13  Blatch. 
267. 

<  Co.  Litt.  1.56.  a. 

»Co.  Litt.  156.  a. 

«  Co.  Litt.  156.  b. 


§   127,]  UNDER  THE  ENGLISH  CONSOLIDATED  JURY  ACT.         105 

cause  of  challenge  was  grounded  upon  facts  producing  such 
a  manifest  presumption  of  partiality,  that,  being  conceded 
or  proven  to  be  true,  the  challenge  must  be  allowed.  The 
array  was  vitiated  by  a  presumption  of  law  against  its  regu- 
larity. Lord  Coke  says  of  this  challenge:  "It  standeth 
sufficient  of  itself,  without  leaving  anything  to  the  con- 
science or  discretion  of  the  triors."  ^  This  challenge,  if 
true,  called  for  the  application  of  a  rule  of  law,  and  there- 
fore the  trial  of  it  was  left  to  the  court.  The  challenge  to 
the  favor,  on  the  contrary,  was  grounded  upon  facts  giving 
rise  rather  to  a  suspicion  of  partiality  than  to  a  positive  pre- 
sumption or  belief.  The  question  to  be  determined  was 
one  of  fact,  whether,  in  view  of  the  circumstances  under 
which  the  return  was  nuide,  the  officer  would  be  improperly 
influenced  in  the  performance  of  his  duty.  The  trial  of 
this  challenge,  thereft)re,  was  relegated  to  certain  persons 
called  triors,  appointed  by  the  court  for  this  purpose,  and 
the  decision  of  it  lay  wholly  within  the  "  discretion  and  con- 
science of  the  triors."  ^  This  challenge  seems  to  have  been 
rarely  taken  at  common  law,  and  is  now  thoroughly  obso- 
lete ;  or  perhaps  it  would  be  more  correct  to  say  that  at 
the  present  time  no  distinction  is  recognized  between  these 
two  classes  of  challenge  to  the  array. 

§  127.  Under  the  Englisli  Consolidated  Jury  Act. — 
But  the  modern  jury  acts  in  England  have  justly,  in  a  great 
measure,  shorn  the  sheriff  of  those  arbitrary  powers  iu  the 
selection  and  summoning  of  a  jury,  the  existence  of  which 
must  have  been  productive  of  many  abuses  which  could  not 
be   corrected  by  the  imperfect  remedy   afforded.     Under 

•    1  Co.  Litt.  156.  b. 

2  Co.  Litt.  156.  a;  Bac.  Abr.  JiiiiesE.;  Trials  per  Pais  (ed.  of  1725),  p« 
129.  The  following  are  stated  to  be  grounds  for  tliis  challenge  :  if  either 
of  the  parties  be  subject  to  the  distress  of  the  sheriff;  if  the  sheriff  have 
an  action  of  debt  against  either  of  them;  if  either  be  tenant  to  the  sher- 
iff. Ibid.  But  note  the  startling  reason  assigned  by  Lord  Coke,  why 
the  array  could  not  be  challenged  for  favor  in  crown  cases.  "  Where 
the  king  is  partj',*'  said  he,  "  one  shall  not  challenge  the  array  for  favor, 
<fec.,  because  in  respect  of  his  allegiance  he  ought  to  favor  the  king 
more."     Co.  liitt.  156.  a. 


106  CHALLENGE  TO  THE  ARRAY.         [CH.  IX. 

the  Consolidated  Jury  Act,'  the  list  of  jurors,  or 
"Jurors'  Book"  as  it  is  called,  is  prepared  by  thfe 
churchwardens  and  overseers  of  the  parish  or  township, 
subject  to  examination  and  amendment  by  the  justices  of 
the  peace  of  the  division,  who  deliver  the  same  through  the 
high  constal)le  to  the  Court  of  (Quarter  Sessions.  The  sher- 
iff, however,  retains  some  discretion  under  this  statute ; 
for  the  panel  is  not  drawn  by  lot,  but  selected  by  him  frorh 
the  "Jurors'  Book.""^ 

§  128.  Not  Allowed  for  Bias  or  Misconduct  of  Particu- 
lar Jurors. —  The  rule  was  universal  at  common  law,  and, 
no  doubt,  is  so  under  American  statutes,  that  no  challenge 
to  the  array  will  lie  for  the  bias  or  misconduct  of  particular 
jurors.  Such  an  objection  can  be  taken  only  l)y  a  challenge 
to  the  polls. ^  Thus,  it  is  no  ground  for  a  challenge  to  the 
array  that  a  detective  officer  who  was  to  be  a  witness  ao-ainst 
the  defendant,  charged  with  a  violation  of  a  federal  statute 
punishing  the  mailing  of  lottery  circulars,  had  conversed 
with  some  of  the  jurymen  on  the  })anel  al)out  lottery  prose- 
cutions, the  evidence  gathered  by  him  and  in  his  possession, 
and  what  he  expected  to  do  in  the  future.*  This  circum- 
stance would  not  support  a  challenge  to  the  polls  even,  un- 
less it  could  be  shown  that  the  jurors  had  formed  opinions 
from  such  conversation. 

§  I2d.  Difference  between  the  Mode  of  Selecting" 
Jurors  at  Common  Law  and  under  American  Statutes.— 
In  order  to  understand  this  subject,  it  is  necessary  to  keep  in 
mind  the  radical  difference  which  exists  between  the  method 
of  selecting  jurors  at  common  law,  and  that  prescribed  by 
modern  American  statutes.  At  common  law,  as  already 
shown, ^  the  selection  and  summoning  of  the  panel  or  array  of 
jurors  for  a  particular  term  or  session  of  court  was  confided 

1  6  Geo.  IV.,  c.  50. 
«/6id.,§14. 

»  Eberluirt  v.  State,  47  Qa.  598, 

♦  United  States  v.  Duff,  (U.  S.  Cir.  Ct.,  S.  U.  Xew  York,  Benedict, 
D.  J.,  January,  1881),  G  Fed.  Kep.  45. 
'  Ante,  ^  U.  '-■='» 


§    129.]  DIFFERENT  MODES  OF  SELECTION.  107 

almost  wholly  to  the  sheriff.  He  selected  at  discretion  from 
the  body  of  freeholders  in  a  county,  or  from  the  body  of  citi- 
zens in  a  city,  the  persons  whom  he  would  have  assembled 
for  this  purpose,  and  he  brought  them  into  court  by  his 
summons,  under  the  authority  of  a  writ  of  venire  facias  in 
civil  cases,  or  a  precept  of  the  justices  in  criminal  cases  ; 
either  of  which  was  simply  a  command  to  him  to  summon  a 
certain  number  of  good  and  lawful  men  to  serve  as  jurors  at 
the  term  or  assize.  Pie  marshaled  the  names  of  the  persons 
thus  summoned  upon  a  paper,  which  was  called  the  panel,  and 
the  persons  whose  names  were  thus  marshaled  were  styled 
the  array. ^  There  was  no  proceeding  at  common  law  similar 
to  what  we  call  the  making  of  the  jury-list.  This,  as  already 
pointed  out,^  is  done  under  modern  American  statutes  by 
county  courts,  county  commissioners,  boards  of  supervisors, 
judges  of  election,  or  by  boards  or  commissioners  specially 
created  by  statute  to  perform  this  duty.  It  consists  of 
making  a  general  list  of  the  names  of  all  persons  residing 
in  the  county  or  other  jurisdiction,  qualilied  to  do  jury 
duty,  or  a  specified  number  or  proportion  thereof.  From 
this  list  the  panel,  who  are  to  serve  at  the  particular 
term  or  portion  of  a  term,  are  drawn  by  lot,  generally 
from  ballots  containing  the  list  of  names  thus  selected 
placed  in  a  box  or  wheel.  This  constitutes  the  second 
step  in  the  organization  of  a  jury,  and  is  properly  called 

1  These  words  are  now  used  in  the  books  to  designate  the  persons  who 
are  assembled  to  do  jury  dutj'  at  a  particular  terra,  or  portio  i  of  a  term, 
of  court.  The  word  "  array "  is  somewhat  antiquated,  and  is  now 
scarcely  ever  used  except  in  the  expression  which  forms  the  caprion  of 
thi**  chapter.  The  word  "  panel "  has  taken  the  place  of  it  in  modern 
times,  and  modern  statutes  frequently  use  the  expression  "  challenge  to 
the  panel"  instead  of  "  challenge  to  the  array."  "And  herein  j^ou  shall 
understand,"  says  Lord  Coke,  '-that  the  jurors'  names  are  ranked  in  the 
panel  one  under  another ;  which  order  or  ranking  the  jurie  is  called  the  ar- 
ray, and  the  verbe,  to  array  the  jurie;  and  so  we  say.  in  common  speech, 
battaile  array,  for  the  order  of  the  battaile."  Co.  Litt.  156.  a.  "A  jurie,'* 
continues  the  great  commentator,  "  is  said  to  be  impanelled  when  the 
sheriff  hath  entered  their  names  into  the  panel,  or  little  piece  of  parch- 
ment, in  panello  assisoe.''''     Co.  Litt.  158.  b. 

'  Ante,  §  45. 


108  CHALLENGE  TO  THE  ARRAY.         [CH.  IX. 

drawing-  the  panel.'  A  vent  of  venire  facias  or  other  process 
is  then  directed  to  the  sheriff,  or  other  officer  whose  duty  it  is 
to  execute  the  processes  of  the  court,  under  which  he  sum- 
mons—  not  as  at  common  hiw  a  given  number  of  good 
and  hiwf ul  men  —  hut  only  the  persons  who  have  been 
thus  selected.'^ 

§  loO.  Challenjjc  for  Partiality'  of  the  Suniuioning  Of- 
ficer.—  When  the  panel  or  array  is  thus  assembled  in  court, 
and  is  called  for  the  purpose  of  impanelling  a  jury,  it  is 
subject  to  be  challenged  by  a  party  to  the  cause  to  be  tried. 
The  usual  ground  of  challenge  at  common  law  was  the  par- 
tiality of  the  sheriff,  or  other  officer,  w'ho  had  selected  and 
summoned  the  array.  Many  illustrations  of  this  will  be 
found  in  the  old  books.  Thus,  "if  the  officer  return  any 
juror  at  the  i)arty's  domination  ;  or  that  he  may  be  more 
favorable  to  one  party  than  the  other ;  or  if  the  array  be  re- 
turned by  a  bailiif  of  a  franchise,  and  the  sheriff  return  it  as 
of  himself ;  ...  if  the  sheriff  be  liable  to  the  distress  of 
either  of  the  parties,  mediatel}^  or  immediately  ;  or  if  he  be 
his  servant  or  officci'  in  fee,  or  of  robes  ;  or  his  counsellor  or 
attorney  ;  or  have  part  of  the  land  depending  on  the  same 
title  ;  or  if  he  has  been  godfather  to  a  child  of  either  of 
the  parties,  or  either  of  them  to  his  ;  or  either  of  them  have 
an  action  of  debt  against  him  ;  or  if  an  action  of  battery,  or 
such  like,  which  imply  malice,  arc  depending  between 
them."^     In  short,  the  opinion  seems  to  have  prevailed  at 

1  Ante,  ch.  VI. 

^Ante,  ch.  V. 

3  Bac.  Abr.  Juries  E. ;  Co.  Litt.  156.  a. ;  Trials  per  Pais  (ed.  of  1725),  p. 
123.  It  was  anciently  a  cause  of  challenge  to  the  array  that,  a  peer  be- 
ing defendant,  no  knight  was  returned  upon  the  panel,  which  ciiallenge 
might  be  taken  by  either  party.  Nudigate  v.  Derby.  2  Dyer,  107.  b.  (27) ; 
Kent  V.  Cranipton,  3  Dyer,  318.  a.  (10) ;  Rex  v.  Pilkinton,  2  Shower,  202; 
Countess  of  N'ortluimberland's  Case,  2  Jlod.  182;  Countess  of  Cjnway's 
Case,  Skin.  229.  In  a  montrans  de  droit  for  lands  in  ward  to  the  queen  it  was 
held  a  good  cause  of  challenge  to  the  array,  that  the  sheriff  at  the  time 
of  arraying  the  panel  was  tenant  to  the  plaintiff,  although  he  was  also 
tenant  to  the  queen.  Hudson  v.  Baker,  Cro.  Eliz,  663.  That  one  of  tlie 
parties  to  the  suit  is  a  tenant  to  the  sheriff  is  a  cause  of  challenge  to 
the  favor  only.    Co.  Litt.  157.  a. ;  Bac.  Abr.  Juries  E.  343. 


§    131.]        CONSANGUINITY  OR  AFFINITY  OF  OFFICER,  109 

common  law  that  the  sheriff  ought  to  be  as  impartial  as  the 
persons  returned.^  But  it  is  obvious  that  the  reason  of  this 
rule  has,  iu  a  measure,  ceased  under  American  statutes. 
With  us  ihe  sheriff  is  little  more  than  a  messenger  of  the 
court,  to  notify  a  certain  number  of  jurors  to  appear,  in 
whose  selection  he  has  taken  no  part.  And  while  he  still 
possesses  some  power  of  corruptly  influencing  the  composi- 
tion of  a  jury,  as  by  returning  members  of  the  panel  not 
found,  thereby  making  it  necessary  to  issue  a  special  venire 
or  to  summon  talesmen  ;  yet  his  impartiality  is  not  now  re- 
garded a  matter  of  as  much  importance  as  it  was  at  com- 
mon law.^  It  has  accordingly  been  held  that  an  expression 
of  opinion  by  the  officer  summoning  the  jurors,  as  to  the 
merits  of  a  particular  case,  or  as  to  the  guilt  or  mnocence 
of  a  particular  party,  is  not  a  good  ground  for  challenging 
the  array. ^ 

§  131.  CoiisangTiinity  or  Aflinity  of  the  SuinTOoningr 
Officer. —  The  reasons  above  stated  exacted  at  common  law 
the  rule  that  consanguinity  or  aflinity  between  the  sheriff 
and  the  adverse  party  to  the  suit,*  at  least  within  the  ninth 


Lord  Chief  Baron  Gilbert  saj^s  upon  this  point:  "The  court  who 
were  to  see  that  an  impartial  person  brouglit  up  the  twelve,  received  all 
challenges  to  their  officer,  and  they  thought  there  could  be  no  better 
rule  to  ascertain  what  should  be  a  proper  challenge  to  the  officer,  than 
that  which  was  allowed  to  each  juror's  partiality;  for  they  did  not  sup- 
pose that  they  had  a  jury  per  quos  rei  Veritas  melius  sciri  poterit,  luiless 
they  were  selected  by  a  person  indifferent."    Gilbert's  Hist.  C.  P.,  98. 

2  Ante,  §  77.  It  is  provided  by  the  Texas  Code  of  Criminal  Procedure 
that  the  defendant  may  challenge  the  array  for  one  cause  only,  viz ; 
"That  the  officer  summoning  the  jury  has  acted  corruptly,  and  has  wil- 
fully summoned  persons  upon  the  jury  known  to  be  prejudiced  against 
the  defendant,  and  with  a  view  to  cause  him  to  be  convicted."  Pasc, 
Dig.,  Art.  3034;  R.  S.  Tex.  1879,  (Code  Cr.  Proc),  Art.  624.  See  Tuttle 
V.  State,  G  Tex  App.  556;  Coker  v.  State,  7  Tex.  App.  S3;  Castanedo  v. 
State,  7  Tex.  App.  582.  See  also  Harris  v.  State,  6  Tex.  App.  97;  Swof- 
ford  V.  State.  3  Tex.  App.  88;  Williams  v.  State,  44  Tex.  34;  Bowman 
v.  State,  41  Tex.  417. 

3  Friery  v.  People,  2  Keyes,  424;  s.  c.  2  Abb.  App.  Dec.  215;  54  Barb. 
319;  Ferris  v.  People,  35  N.  Y.  125;  s.  c,  31  How.  Pr.  140;  48  Barb. 
17;  1  Abb.  Pr.  (N.  S.)  193. 

*  Co.  Litt.  156.  a. ;  Bac.  Abr.  Juries,  E. 


110  CHALLENGE  TO  THE  ARRAY.         [CH.  IX. 

degree/  w:is  good  ground  for  challenging  the  array .^  This 
rule  seems  to  have  been  adopted  in  some  American  cases, 
partly  out  of  deference  to  ancient  precedents,  and  partly 
from  the  consideration  that,  under  the  particular  statute, 
the  sheriff  still  retained  some  power  in  sununoning  the  jury, 
lie  could,  at  least,  omit  to  summon  ])articular  members  of 
the  panel  as  drawn,  in  which  event  it  would  be  necessar}'  to 
draw  an  additional  panel,  or  to  complete  the  jur}^  in  a  par- 
ticular cause,  from  talesmen  who  might  be  assembled  by 
Jiimself  for  that  purpose.  Accordingly  it  has  been  held  to 
be  a  ground  of  challenge  that  the  sheriff  was  a  son,'^  or  a 
brother,''  of  the  adverse  party  to  a  suit ;  or  that  he  had 
married  the  first  cousin  of  the  plaintiff,  and  by  her  had 
issue  living,  although  the  mother  was  dead;''  or  that  his 
•wife  and  the  plaintiff's  were  sisters.^  But  it  was  no  cause  of 
challenge  to  the  array  in  a  criminal  case  that  the  sheriff  was 
4i  son  of  the  prosecuting  attorney  ;"  nor  in  a  civil  case,  that 
he  was  married  to  a  sister  of  the  person  who  was  surety 
for  costs,  and  who  had  aided  the  plaintiff  with  money  to 
carry  on  the  suit :  **  nor  that  he  was  a  cousin  of  the  lessor 
of  the  plaintiff  in  ejectment,  for  the  lessor  was  not  a  party 
in  intei'est.^ 

§  182.  Suiiiinoniiig'  Officer  a  Party  or  the  Advocate  of 
a  Party  to  the  Suit. —  The  reason  which  excluded  the  nrray 
when  summoned  l)y  an  officer  who  was  related  to  the  ad- 
verse i)any  to  a  suit  to  be  tried,  operated,  of  course,  more 
strongly  where  the  sheriff  was  himself  such  adverse  party  ; 

1  3  Bin.  Coin.  3G3;  Vernon  v.  Manners,  3  Dyer,  319.  a.  (13)  ;  Oulton  v. 
.Morse.  2  Kerr  (N.  B.),  77;  Vanauken  v.  Beenier,  4  N.  J.  L.  304. 
J    *  Mounsen    v.  West,  1   I.eon.   8S.     See  also  Foote  v.  Morgan,  1  Hill 
.(N.  Y.)   054. 
-    3  Koctor  V.  Hudson,  20  Tex.  234. 

*  Munsliower  v.  Patton,  10  Serg.  &  R.  334. 

«  Momisen  v.  We.st,  1  Leon.  88. 

6  MarUhani  v.  Lee,  citeil  Ibid.     See  also  Foot  v.  Morgan,  1  Hill,  654. 

7  Stale  V.  Cameron.  2  Chand.  172. 

«  Murcliison  v.  Marsh,  2  Kerr  (N.  B.)  608.  The  court  would,  how- 
ever, in  sui-1)  a  case,  on  applicntion  by  the  defendant,  award  the  panel  to 
the  coroner. 

9  Anon.,  3  Dyer,  300.  b.  (35) ;  Goodlitle  v.  Thrustout,  2  Stra.  1023. 


§  .^ISS.]        *'  NOMINATION  "   OF  JURORS  BY  A  PARTY.  Ill 

a.nd  this  was  always  a  ground  of  challenging  the  array  at 
common  law.  And  whether  out  of  deference  to  ancient 
precedents,  or  considering  the  influence  which  the  sheriff 
may  still  exert  in  the  selection  of  the  jur}^  as  stated  in  the 
last  section,  or  because,  although  he  might  not  have  any 
substantial  power  in  this  regard,  under  particular  statutes, 
jet  it  would  be  an  unseemly  spectacle,  and  one  calcuhited 
to  impair  public  confidence  in  the  administration  of  justice, 
to  permit  a  sheriff  to  summon  a  jury  to  try  a  cause  in 
which  he  was  a  party,  —  the  American  courts  have  generally 
adopted  the  common-law  rulc,^  although  some  courts  have 
held  otherwise.^  The  reason  of  the  rule  extends  to  cases 
where  the  sheriff  is  manifestly  interested  in  the  event  of  a 
suit,  although  not  a  party  to  the  record  ;  and  where  this 
appeared,  the  coroner  was  ordered  to  summon  tales  jurors, 
to  complete  the  panel  of  a  struck  jury.^  It  has  been  held 
that  if  a  sheriff  return  a  jury  to  try  an  indictment  in  which 
he  is  prosecutor,  the  objection  can  only  be  made  by  way  of 
challenge  ;  it  cannot  be  made  by  motion  in  arrest  of  judg- 
ment.'* For  like  reasons  it  was  a  ground  of  challenge  to 
the  array  at  common  law,  that  the  jury  were  returned  by  a 
person  who  appeared  as  the  advocate  of  one  of  the  parties 
at  the  trial. ^ 

§  133.  "  Xominatioii  "  of  Jurors  "by  a  Party. —  Before 
the  passage  of  those  statutes  which  exist  now  in  nearly 
every  State,  providing  for  the  drawing  of  the  panel  by  lot, 
the  sheriff  was  vested  with  authority  to  select  according  to 
his  discretion  ;  and  therefore  everything  savoring  of  inter- 
ference by  either  party  in    the   selection    of  the  jury  was 

iCow^ill  V.  Wooden,  2  Blaekt.  332;  Craniner  v.  Crawley,  1  N.  J. 
L.  43;  Woods  v.  Rowan,  5  Johns.  133;  Muushower  v.  Patton,  10  Serg. 
<&  R.  334. 

■  2  State  V.  Judge,  11  La.  An.  79;  Prince  v.  State,  3  Stew.  &  Port.  253^ 
•  3  People  V.  Tweed,  50  How.  Pr.  286.  See  also  Rex  v.  Johnson, 
2  Strange,  1000. 

*  Rex  V.  Shepherd,  1  Leach,  C.  C.  119. 

r'OOi  Litt.  156.  b.;  Baylis  v.  Lucas,  Cowp.  112;  Watldns  v.  Weaver, 
10  Johns.  107;  Talhnau  v.  Woodworth,  2  Johns.  385;  Stubber  v.  Wail; 
1  Craw.  &  Dix  (Irish)  Cir.  54;  Chapman  v.  Macutchin,  1  Craw.  &  Dix 
(Irish)  Cir.  121. 


112  CHALLENGE  TO  THE  ARKAY.         [CH.  IX. 

justly  reprobated.  In  an  early  case  in  New  Jersey  it  ap- 
peared that  the  plaintiff  had  sent  the  venire,  to  the  deputy 
sheriff  with  the  request  that  jurors  be  summoned  "from 
the  upper  part  of  the  county,"  none  however  being  desig- 
nated by  name.  This  circumstance  was  held  to  afford  a 
good  ground  of  challenge  to  the  array.  "There  is,"  said 
the  Chief  ^Justice,  "no  discriminating  between  such  inter- 
ferences as  would  be  harmless,  or  injurious.  The  purity  and 
very  existence  of  trial  by  jury  depend  upon  an  impartial 
selection  of  those  who  are  to  judge  between  the  parties, 
and  the  fair  execution  of  the  venire.  Every  species  of  in- 
terference by  the  parties  must  be  prevented."  ^ 

Some  courts,  how^ever,  have  been  less  strict.  Thus, 
under  the  following  circumstances,  the  jurors  were  held  not 
to  have  been  "nominated"  by  one  of  the  parties  to  the 
suit,  in  the  obnoxious  sen.se  of  that  term.  The  suit  was 
against  a  ])ank  for  forcible  entry  and  detainer.  The  officer 
who  summoned  the  jury,  being  desirous  of  avoiding  a  sum- 
mons of  any  of  the  stockholders  of  the  bank,  went  to  the 
attorney  for  the  i)laintiff  for  information  as  to  who  were 
the  stockholders  in  the  institution.  The  attorney,  dischiim- 
ing  any  wish  to  bias  him  in  the  discharge  of  his  duties, 
named  to  him  several  individuals  who  were  not  such  stock- 
holders, and  whom  he  believed  to  be  judicious  and  inde- 
pendent men,  some  of  whom  the  officer  summoned,  and 
some  he  did  not.  The  officer  testified  at  the  trial  that  the 
information  imparted  by  the  attorney  had  not  biased  him  in 
summoning  any  juror.  Under  these  circumstances  a  chal- 
lenge to  the  array  was  held  to  have  been  properly 
disallowed.^ 

§  134.  Irregularities  in  selecting  the  General  List. — 
Statutes  which  prescribe  the  time  and  manner  of  selecting 
the  general  list,  as  described,^  are  generally  treated  as  direct- 


» McDonald  v.  Sluiw,  1  N.  J.  T;.  G.    See  also  State  v.  Johnson,  1  N.  J. 
L.  219. 
8  Quinebaufi^  Bank  v.  Turbox,  20  (.'onti.  510 
«  Ante,  ch.  "iV. 


§    135.]  IRREGULARITIES  IN  SELECTING.  113 

ory.^  The  primary  object  which  they  have  in  view  is  the 
just  apportionment  of  jury  duty  among  the  citizens  of  the 
county  or  other  jurisdiction,  rather  than  the  preservation 
of  the  rights  of  litigants.  If  the  names  of  persons  not 
qualified  for  this  duty  get  inadvertently  into  this  list,  and 
if  such  names  are  drawn  as  members  of  the  panel  for  a 
particular  term,  persons  having  litigation  at  that  term  have 
a.  complete  remedy  by  challenging  for  cause  any  member  of 
the  panel  suspected  of  being  disqualified  or  partial.  The 
general  rule,  therefore,  is  that  irregularities  in  the  general 
list  constitute  no  ground  for  challenging  the  array .^  Thus, 
if  the  officers  charged  with  such  duty  fail  to  make  the  list 
as  required  by  law,  and  the  jury,  in  default  of  such  list, 
is  drawn  from  the  old  list,  this  does  not  vitiate  the  array, 
nor  is  it  a  cause  of  challenge  to  the  polls.  If  the  jurors 
are  qualified  individually,  the  parties  to  the  suit  are  not 
prejudiced.^  This  rule,  however,  is  not  of  universal  appli- 
cation. Thus,  it  has  been  held  that  where  the  legislature 
provides  a  particular  mode  for  the  selection  of  jurors,  and 
repeals  all  conflicting  laws,  a  selection  made  according  to 
the  provisions  of  the  repealed  law  will  be  void.* 

§  135.  (Continued.)  Rule  in  New  England. —  In  the 
New  England  States  where,  as  we  have  previously  seen,^ 
the  venires  are  severally  addressed  to  the  different  towns 
and  cities  in  the  county  by  the  clerk  of  the  court,  who  is 
directed  in  issuing  them  to  require  from  each  town  or  city 
a  number  of  jurors,  proportionate  to  its  number  of  inhabit- 
ants, errors  or  irregularities  in  the  preparation  of  the  list 
or  the  drawing  of  jurors  in  one  city  or  town  of  a  county 
afford  no  ground  of  challenge  to  the  array,  but  to  the  polls 
only.® 

i  Ante,  §  47. 

2  See  post,  §  139. 

3  State  V.  Massey,  and  State  v.  Baldwin,  2  Hill  (S.  C),  379;  Rafe  v. 
State,  20  Ga.  60;  Perry  v.  State,  9  Wis.  19;  Gettvverth  v.  Teutonia  Ins. 
Co.,  29  La.  An.  30;  State  v.  Petrie,  25  La.  An.  386. 

*  State  V.  Da  Eoclia,  20  La.  An.  356 ;  State  v.  Morgan,  20  La.  An.  442. 
»^n«e,§  59. 

«  Com.  V.  Walsh,  124  Mass.  32 ;  State  v.  Hascall,  6  N.  H.  353. 

(8) 


114  CHALLENGE  TO  THE  ARRAY.         [CII.  IX. 

§  136.  Failure  to  record  the  General  List. —  The  rccord- 
iiig  of  the  lists  is  necessary  in  order  that  the  public  may  he 
apprised  of  the  jurors  selected,  and  that  interested  parties 
may  have  ample  opportunity  to  investigate  their  qnaliricn- 
tions.  The  fact  that  the  recording  of  the  list  was  vvholh' 
omitted  would  seem  to  afford  reasonable  ground  for  objec- 
tion to  a  panel  drawn  from  such  list,  and  it  was  so  held  in 
two  earl}'  cases  in  Indiana.^  These  cases,  how^ever,  are  not 
authority  for  the  proposition  that  the  list  must  be  recorded 
within  the  time  lixed  b}  the  statute.  Indeed,  by  analogy 
to  decisions  previously  noticed,  it  would  seem  to  be  clear 
that  a  strict  compliance  with  the  directions  of  the  statute  in 
this  respect  is  not  required.  Accordingly,  we  find  it  estab- 
lished, where  a  statute  directed  that  the  list  prepared  by  the 
board  of  county  commissioners  should  be  "  forthwith  de- 
livered to  the  clerk  of  the  District  Court,"  that  a  failure  to 
do  so  until  several  days  after  the  selection  is  not  such  a 
"material  departure  from  the  forms  prescribed  by  law  in 
respect  to  the  drawing  and  return  of  the  jury,"  as  consti- 
tutes a  ground  of  challenge.^ 

§  137.  Iiiformalitj'  in  the  Certificate  of  Selection. — 
The  statutes  generally  require  that  the  officers  charged  with 
the  selection,  having  completed  their  duties,  shall  make  a 
list  of  the  jurors  selected,  and  certify  the  same  to  the  cir- 
cuit or  county  clerk.  Technical  accuracy  in  the  form  of 
this  certificate,  however  desirable,  is  not  a  matter  upon 
which  a  party  can  insist,  even  in  a  criminal  case.  Thus,  a 
list  headed,  "  A  List  of  Names  of  Jurors  in  the  Jury  Box 
of  Ware  County,"  followed  by  the  names  of  such  jurors,, 
and  concluding  with,  "  Given  under  our  hands  and  seals," 
etc.,  is  sufficient,  although  it  does  not  show  that  such  list 
contains  the  names  of  all  the  jurors  in  the  l)Ox.^ 

§  138.  Objection  to  the  Officer  who  made  the  Selection. 
—  It  is  no  ground  for  challenging  the  array,  that  the  jury 

1  Mitchell  V.  Likens,  3  Blackf.  258;  Mitchell  v.  Denbo,  lb.,  259. 

2  State  V.  Gut,  13  Minn.  341. 

3  Carter  v.  State,  56  Ga.  463;  Brinkley  v.  State,  54  Ga.  371.     See  also, 
Gardiner  v.  People,  6  Park.  C.  K.  157, 198;  State  v.  Clarkson,  3  Ala.  378. 


§    139.]  IMPERFECTIONS  OF  THE  JURY  LIST.  115 

list  was  prepared  by  a  commissioner  whose  term  of  office 
had  expired ;  for  the  acts  of  a  de  facto  commissioner,  if 
regular,  will  be  binding.  The  capacity  of  a  sheriff,  duly 
commissioned  and  acting  as  such,  cannot  be  tested  or  in- 
quired into  collaterally  upon  a  motion  to  quash  the  venire} 
So,  under  the  old  law,  it  was  no  cause  of  challenge  that  the 
array  was  made  by  a  person  two  days  after  he  had  received 
his  discharge  as  sheriff.-  But  where  the  law  devolves  the 
selection  upon  one  officer,  a  selection  by  another  officer  will 
be  good  ground  for  challenging  the  array.  Thus,  where 
the  law  prescribed  that  the  selection  should  be  made  by 
jury  commissioners,  and,  such  commissioners  not  having 
been  appointed,  the  court  administered  to  the  sheriff  the 
oath  prescribed  for  such  commissioners,  and  directed 
him  to  summon  jurors  for  the  term,  it  was  held  that  the 
array  ought  to  have  been  discharged.^  Conversely,  a 
selection  by  the  jury  commissioner  before  he  has  taken 
his  oath  of  office  will  not  be  upheld.*  So,  it  will  be  a 
good  ground  of  such  challenge  if  the  duty  of  select- 
ing jurors,  devolved  by  law  upon  jury  commissioners,  is  by 
them  delegated  to  others.^ 

§  139.  Imperfections  of  the  Jury  List. —  The  prepara- 
tion of  a  complete  and  perfect  list  of  the  persons  qualified 
for  jury  duty  is  obviously  very  difficult,  if  not  impossible, 
and  is  not  required  by  law.  It  may  be  laid  down  as  a  gen- 
eral rule,  therefore,  that  the  mere  fact  that  the  jury  list  is 
incomplete, —  that  there  are  persons  within  the  jurisdiction 
qualified  to  serve  as  jurors,  and  not  exempt,  whose  names 
are  not  on  it, —  or  that  persons  disqualified  for  jury  service 
are  included  in  it,  will  be  no  ground  for  challenging  the 

1  State  V.  McJunkin,  7  S.  C.  21;  Vance  v.  Com.,  2  Va.  Cas.  162;  Car- 
penter V.  People,  64  N.  Y.  483 ;  Dolan  v.  People,  7Z>.,  485;  State  v.  Fer- 
ray,  22  La.  An.  423. 

^Hoare  v.  Broom,  Cro.  Eliz.  309.  But  compare  Anon.^  Dyer,  177.  b. 
pi.  (34;. 

s  Elkins  V.  The  State,  1  Tex.  App.  539.  See  also,  Shackleford  v.  The 
State,  2  Tex.  App.  385. 

*  State  V.  Vance,  31  La.  An.  398 

*  State  V.  ISTewhouse,  29  La.  An.,  824. 


116  CHALLENGE  TO  THE  ARRAY.         [CH. 


IX. 


array.'  Nor  is  it  })€r  se  evidence  to  support  a  challenge  to 
the  array,  that  a  great  disproportion  exists  between  the 
number  of  persons  of  different  religious  beliefs  upon  the 
panel  ;  ^  nor,  a  rich  man  being  defendant,  that  there  are 
very  many  poor  men  upon  it.^  Decisions  are  even  found 
which  go  to  the  length  of  holding  that  a  list  valid  upon  its 
face  is  conclusive  ujion  the  prisoner  as  to  its  regularity.* 

§  140.  Li.st  Incomplete  through  Fraud. —  Suppose, 
however,  that  a  trial  or  series  of  trials  is  to  take  place,  involv- 
ing questions  which  excite  great  public  interest.  Sujipose, 
also,  that  the  officers  of  the  State  whose  duty  it  is  to  make 
the  jury  list  omit  therefrom  a  large  number  of  persons 
whose  opinions  or  affiliations  are  such  as  would  probably 
make  them  favoral)le  to  the  accused.  In  other  words,  sup- 
pose the  jur}^  list  to  be  incomplete  through  fraud ;  that  this 
fact  is  set  up  as  ground  of  challenge  to  the  array,  and  that 
it  is  admitted  by  a  demurrer.  This  was  Daniel  O'Connell's 
case.*  O'Connell  and  others  were  indicted  for  conspiracy 
in  the  Irish  Queen's  Bench.  A  challenge  to  the  array  was 
interposed,  on  the  ground  that  the  list  of  jurors,  required  to 
be  made  by  the  Irish  Jury  Act,''  had  been  illegally  and 
fraudulently  prepared  by  persons  unknoAvn,  for  the  purpose 
of  prejudicing  the  parties  upon  trial.  To  this  challenge 
the  attorney-general  demurred.  It  appeared  that  the 
special  jury  list,   from   which    the  panel  in  this  case  was 

»  People  V.  Tweed,  50  How.  Pr.  280;  Maffett  v.  Tonkins,  6  N.  J. 
L.  228;  Dolan  v.  People,  64  N.  Y.  485;  Foust  v.  Com.,  33  Pa.  St.  338; 
Jewell  V.  Com.,  22  Pa.  St.  94;  Com.  v.  Walsh,  124  Mass.  32;  Woodsides 
V.  State,  2  How.  (Miss.)  655;  Malone  v.  State,  49  Ga.  210;  Brinkley  v. 
State,  54  Ga.  371 ;  Foster  v.  Speed,  32  La.  An.  34 ;  Sumrall  v.  State,  29  Miss. 
202;  State  v.  Xeagle,  65  Me.  468.  But  see  Compton  v.  Legras,  24  La. 
An.  259. 

2  Regina  v.  Mitchel,  3  Cox  C.  C.  1. 

3  Per  Lefroy,  B.,  Ibid.,  p.  30. 

^Gardiner  v.  People,  6  Park.  C.  R.  157,  198;  State  v.  Allen,  1  Ala. 
442;  State  v.  Clarkson,  3  Ala.  378;  State  v.  Brooks,  9  Ala.  9. 

"11  CI.  &  Fin.  155;  s.  c,  1  Cox  C.  C.  304.  See  also  Reg.  t. 
Fitzpatrick,  Craw.  &  Dix  (Irish)  513;  Reg.  y.  Conrahy,  1  Craw.  & 
Dix  (Irish)  Cir.  56. 

«3«fc4Will.  IV.,  c.  91. 


§    140.]  LIST  INCOMPLETE  THROUGH  FRAUD.  117 

struck,  contained  upwards  of  seven  hundred  names,  but  it 
was  proved  that  the  names  of  fifty-nine  persons  qualified  as 
such  jurors  had  been  omitted  from  tlie  list.^  The  matter 
was  adjudged  in  favor  of  tlie  crown  at  the  trial,  and  after- 
wards, before  the  full  court,  on  motion  for  a  new  trial. ^ 
The  case  was  next  brought  before  the  House  of  Lords  upon 
this  and  other  points,  where  the  matter  was  again  fully 
argued,  and  the  decision  of  the  court  below  afiirmed.  The 
opinions  of  the  judges  were,  upon  this  occasion,  requested 
for  the  assistance  of  the  Lords.  As  to  this  challenge,  the 
judges  were  unanimously  of  opinion  that  it  could  not  be 
taken,  for  the  cause  alleged  and  admitted  by  the  demurrer. 
This  opinion  was  adopted  by  Lord  Lyndhurst,  L.  C,  and 
Lord  Brougham  ;  Lords  Denman  and  Campbell  were  of  the 
contrary  opinion,  while  Lord  Cottenham  expressed  no  opin- 
ion. Although  the  Lords  were  thus  divided,  the  opinion 
of  the  judges  has  been  regarded  as  settling  the  question 
that  a  deficiency  in  the  jury  list  is  not  a  good  ground  for 
challenging  the  array. ^ 

A  decision  of  the  former  Supreme  Court  of  New  York 
may  be  profitably  considered  in  connection  with  O'Connell's 
case.  This  case  grew  out  of  the  abduction  of  Morgan, 
charged  to  have  been  done  b}^  members  of  the  Masonic  fra- 
ternity. A  motion  was  made  to  quash  an  indictment,  for 
the  reason  that  the  supervisors,  in  preparing  the  list  of 
grand  jurors  for  the  county,  had  intentionally  omitted  the 
names  of  competent  and  qualified  men,  for  no  other  reason 
than  that  they  Avere  members  of  the  Masonic  fraternity. 
This  was  held  no  ground  for  quashing  the  indictment.*  But 
this    decision  does  not  go  the  length  of  O'Connell's  case. 

^  The  statute  required  the  list  of  special  jurors  to  be  made  from  the 
general  "Jurors' Book,"  by  taking  therefrom  the  names  of  aW  persons 
possessing  the  qualifications  demanded  by  law  of  special  jurors.  3  &  4 
Will.  IV.  c.  91,  ^  24. 

'  7  Irish  L.  261.     Ferrin,  J.,  dissenting. 

3  Reg.  V.  Eea,  16  Irish  C.  L.  (N.  S.)  428;  Brown  v.  Esmonde,  Irish  Rep. 
4  Eq.  630;  Hayes  v.  Reg.,  2  Cox  C.  C.  105;  Fogarty  v.  Reg.,  tbid. ;  Reg. 
V.  Burke,  10  Cox  C.  C.  519. 

*  People  V.  Jewett,  3  Wend.  314.  320. 


118  CHALLENGE  TO  THE  AKKAV.         [CH.  IX. 

The  liish  statute  required,  as  we  have  sveu,  that  the  names 
of  aU  persons  possessing  the  qualifications  required  by  law 
for  jury  service  should  he  })ut  upon  the  list.  The  statute  of 
Kew  York,  under  Avhich  the  jur}'  list  in  this  case  was  pre- 
pared, required  only  that  the  supervisors  of  the  county 
should  prepare  a  list  of  three  hundred  names  of  persons  to 
serve  as  grand  jurors,  being  "  such  persons  only  as  they 
know  or  have  good  reason  to  believe  are  possessed  of  the 
qualifications  by  law  required  of  persons  to  serve  as  jurors 
for  the  trial  of  issues  of  fact,  and  are  of  ai)i)roved  integrity, 
fair  character,  sound  judgment,  and  well  informed."  '  The 
supervisors  were  unquestionably  guilt}^  of  reprehensible  con- 
duct, if,  as  alleged,  they  rejected  any  man  qualified  for  jury 
service  for  no  other  reason  than  that  he  was  a  member  of 
the  Masonic  fraternity.  Chief  Justice  Savage  observed : 
"  I  do  not  approve  of  the  exclusion  by  the  supervisors  of 
any  set  of  men,  on  the  ground  of  their  belonging  to  any 
particular  association  or  fraternity.  A  grand  jury  should  be 
selected  with  a  single  eye  to  the  qualifications  pointed  out  by 
the  statute,  without  inquir}'  whether  the  individuals  selected 
do  or  do  not  belong  to  any  particular  society,  sect,  or  de- 
nomination, social,  benevolent,  political  or  religious."'^  At 
the  same  time,  the  supervisors  did  all  that  the  law  required 
of  them  when  they  selected  a  list  of  jurors  of  the  number 
and  qualifications  required  by  law.  The  discretion  neces- 
sarily vested  in  the  supervisors  in  making  this  selection 
could  not  be  reviewed  by  the  court.  "  Whilst  those  who 
are  selected  are  unexceptionable,"  said  Savage,  C.  J.,  "  the 
fact  that  others  e(iually  unexceptionable  are  excluded,  is  no 
cause  of  challenge  to  the  array."  ^ 

The  grand  jury,  it  must  also  be  remembered,  is  merel}'  an 
accusing  l)ody  ;  and  the  liberty  of  the  citizen  does  not  require 
that  nice  inquiry  should  be  made  into  the  manner  in  which 
it  has  been  organized.  The  main  cjuestion  is  whether  the 
prisoner  has  been  justly  accused  or  not,  and  an  attack  upon 

1  X.  Y.  Laws,  1827.  p.  312.  §§1,4. 
^3  Wend.  320. 
^Pjid.,  p.  321. 


.    141.]     FILLING  AND  EE-FILLING  THE  JURY  WHEEL.  119 

the  legality  of  the  grand  jury  is  almost  always  a  rogue's  de- 
fense. Such  attacks  have  liecn  successful  in  American 
courts  with  scandalous  frequency,  and  almost  universally  to 
the  thwarting  of  public  justice  and  the  injury  of  society.^ 

But  with  reference  to  the  constitution  of  the  body  which  is 
to  try  the  prisoner,  the  question  is  entirely  different.  A  com- 
mon sense  of  justice  and  fair  play  abhors  a  packed  jury. 
When  the  statute  requires  that  the  names  of  all  residents  of 
the  county  possessing  the  qualifications  demanded  by  law 
for  jury  service  shall  be  put  upon  the  list,  and  when  the 
officers  who  make  up  the  list  deliberately  omit  therefrom  all 
persons  otherwise  properly  qualified,  who,  from  known  af- 
filiations or  opinions,  are  likely  to  be  more  favorable  to  the 
accused  than  those  who  are  selected,  a  panel  of  jurors 
drawn  from  such  a  list  ought  to  be  dismissed  and  the  officers 
punished.  It  is  to  be  hoped  that  the  time  will  never  come 
when  any  American  court,  in  which  the  question  arises  as  to 
the  constitution  of  a  trial  jury,  will  deliberately  put  its  seal 
of  approval  upon  the  opinion  of  the  judges  in  O'Connell's 
case.  The  law  of  this  country  is  confidently  believed  to  be 
that,  while  a  challenge  of  an  array  will  not  be  sustained 
merely  because  of  a  deficiency  of  the  list  from  which  it  was 
drawn,  yet  the  rule  is  otherwise  where  that  deficiency  is  the 
result  of  fraud,  or  of  manifest  prejudice  against  prisoners 
about  to  be  tried. ^ 

§  141.  Filling  and  re-filling- the  Jury  Wheel. —  A  stat- 
ute provided  that  the  sheriff  and  commissioners  should 
select  and  deposit  a  sufficient  number  of  names  in  the  jury 
wheel,  so  that  at  the  last  drawing  in  each  year  the  number 
requisite  for  one  drawing  should  remain  in  each  wheel. 
This  provision  was  not  violated  hy  emptying  the  wheel,  and 

1  See  the  oliai)ters  relating  to  grand  juries,  j)os^ 

2  People  V.  Tweed,  50  How.  Pr.  264;  People  v.  Dolan,  64  N.  Y.  485; 
Maffett  V.  Tonkins,  6  N.  J.  L.  228.  This  rule  is  recognized  in  some  of 
our  statutes.  I^ast^  §  143,  sub-sec.  3.  O'Connell's  case  has  been  fre- 
quently cited  by  American  courts  to  tlie  point  that  a  mere  deficiency  in 
the  general  jury  list  will  not  support  a  challenge  to  the  array;  overlook- 
ing the  fact  that  the  deficiency  in  that  particular  case  was  admitted  to 
have  been  the  result  of  fraud. 


120  CHALLENGE  TO  THE  AKRAV.         [CH.  IX. 

refilling  it  with  new  iiiimcs,  before  the  expiration  of  the 
year.^  And  it  was  also  held  to  be  no  objection  to  the  array 
that  the  sheriff  and  ooniniissioners  were  enijajjed  several 
weeks  in  tilling  the  wheel  with  names  ;  that  they  employed 
a  clerk  to  copy  off  the  jury  list  upon  ballots  for  this 
purpose ;  that  the  names  as  copied  were  not  immediately 
placed  in  the  wheel,  but  in  a  box  which  w^as  not  kept  with 
the  same  scrui)ulous  care  as  the  wheel  itself.^ 

§  142.  Custody  of  Jury  "Wheel. —  Where  the  law  provided 
no  place  for  the  custody  of  the  wheel  from  which  the  drawing 
was  made,  the  jury  commissioners  were  considered  to  have 
amply  provided  for  its  security  by  placing  it  in  the  vault  of 
the  county  treasurer,  upon  the  condition  that  no  one  but  a 
jury  commissioner  should  have  access  to  it,  the  sheriff  keep- 
ing the  key  to  the  wheel. '^  P^ach  jury  commissioner  and  the 
sheriff  should  seal  the  wheel  with  their  individual  seals,, 
different  in  each  instance.  The  wheel  may  thus  be  said  to 
be  in  the  custody  of  all  instead  of  a  single  ofiicer,  where 
one  seal  is  used.^ 

§  143 .  Irregularities  in  drawing  the  Panel . — ( 1 ) .  Stat- 
utes Directory. —  Statutory  provisions  respecting  the  draw- 
ing of  the  panel  are  generally  regarded  as  directory  merely,* 
and  irregularities  therein,  unless  plainly  operating  to  the 
prejudice  of  the  challenging  party,  form  no  ground  for 
challenging  the  array  ;  "^  as,  for  instance,  where  the  names  are 
drawn  alternately  for  the  two  panels  of  grand  and  'petit 


1  Com.  V.  Lippiud,  6  Serg.  &  R.  395. 

2  Ibid. 

3  Curley  v.  Com.,  84  Pa.  St.  151.  See  also  Rolland  v.  Com.,  82  Pa. 
St.  306. 

*Ibid.    Brown  V.  Com.,  73  Pa.  St.  322. 

5  Ante,  §  63. 

6Eafe  V.  State,  20  Ga.  64;  State  v.  Williams,  3  Stew.  454;  Friery  v. 
People,  2  Abb.  App.  Dec.  215;  s.  c,  2  Keyes,  424;  54  Barb.  319; 
Ferris  v.  People,  35  IS .  Y.  125 ;  s.  c,  31  How.  Pr.  140 ;  48  Barb.  17 ;  1  Abb. 
Pr.  (N.  S.)  193;  State  v.  Guidry,  28  La.  Au.  030;  Pratt  v.  Grappe,  12  La. 
451;  State  v.  Miller,  20  La.  An.  579;  Mapes  v.  People,  69  111.  523;  Wil- 
kelm  V.  People,  72  111.  468. 


§    143.]       IRREGULARITIES  IN  DRAWING  THE  PANEL.  121 

jurors  ;  ^  or  where  the  oflScers  failed  to  destroy  the  slips  as 
drawn,  containing  the  names  of  persons  absent  or  deceased, 
and  to  draw  others  in  their  stead  ;^  or  where  the  oflBccrs, 
having  discovered  an  informality  in  the  drawing,  returned 
all  the  names  into  the  box  and  began  the  drawing  anew.^ 

Upon  like  considerations,  a  challenge  was  disallowed  upon 
the  following  facts,  although  presenting  numerous  informal- 
ities on  the  part  of  the  officers  charged  with  the  drawing : 
The  proper  officers  did  not  attend  or  witness  the  drawing ; 
no  minutes  were  kept  of  the  jurors  as  drawn ;  no  minutes 
of  the  drawing  were  signed  or  certified  by  any  attending 
officer ;  some  of  the  attending  officers  signed  blank  certifi- 
cates, which  the  clerk  filled  up  after  the  drawing  ;  no  copy 
of  the  minutes  of  the  drawing  was  delivered  to  the  sheriff  ; 
the  ballots  of  the  jurors  drawn  were  delivered  to  the  sher- 
iff, in  lieu  of  a  copy  of  the  minutes,  and  from  these  he 
summoned  the  jury ;  the  panel  or  list  of  jurors  filed  was 
not  a  copy  of  the  minutes  of  the  drawing.  There  was,, 
however,  no  allegation  of  fraud  or  corruption  against  any 
of  the  officers  who  drew  or  summoned  the  jury,  or  certified 
to  the  list ;  neither  was  there  any  of  injury  or  prejudice  to 
the  prisoner.*  And  there  are  many  other  cases  where  the 
irregularity  might  amount  to  a  misdemeanor  and  subject  the 
officers  to  punishment,  and  yet  afford  no  ground  for  chal- 
lenging the  array.'' 

(2).  But  Esseiitial  Provisions  must  he  folloived. —  It  is^ 
otherwise  where  the  essential  provisions  of  such  a  statute 

^  Dotson  V.  The  State,  62  Ala.  141.  See  also  Crane  v.  Dj^gert,  4  Wemi. 
675. 

2  Rolland  v.  Com.,  82  Pa.  St.  306,  321.  Contra,  Jones  v.  State  (Sup.  Ct, 
Ohio,  1851),  8  West.  L.  J.  508. 

3  Lindley  v.  Kiudall,  4  Blackf.  189. 

*  Friery  v.  People,  2  Abb.  App.  Dec.  215;  s.  v.,  2  Keyes,  424;  54  Barb. 
319. 

5  Ferris  v.  People,  35  N.  Y.  125;  s.  c,  31  How.  Pr.  140;  4S  Barb.  17; 
1  Abb.  Pr.  (N.  S.)  193;  Gardiner  v.  People,  6  Park.  C.  K.  155;  People  v. 
Rogers,  13  Abb.  Pr.  (N.  S.)  370;  State  v.  Squaires,  2  Nev.  227;  Peopl<-  v. 
Ah  Chung,  54  Cal.  398;  Pierson  v.  People,  IS  Hun.  239;  Cox  v.  People,. 
19  Hun,  430;  Dolanv.  People,  64N.  Y.  485;  Claussen  v.  LaFranz,  1  Iowa,. 
226,  241 ;  State  v.  Seaborn,  4  Dev.  305. 


122  CHALLEN(;E  TO  THE  AURAV.  [CII.   IX. 

have  been  palpably  disregarded  ;  as,  for  instance,  whore  the 
officers  took  the  names  from  the  list  according  to  their  dis- 
<'rotion,  instead  of  drawinir  them  by  lot ;  ^  or  assumed  to 
reject  names  duly  drawn  as  beinir  names  of  persons  unfit  for 
jury  duty  ;  -'  or  where  fifteen  jurors  only  were  drawn  instead 
of  twenty-four:^  or  where  names  Avere  i)ut  u[)on  the  panel 
by  the  cleric  of  the  court  at  the  request  of  the  persons 
themselves,  without  being  regularly  drawn;*  or  w^here  the 
names  of  the  jurors  were  drawn  from  an  open  box  in  such 
n  manner  that  the  names  upon  each  ballot  were  exposed  to 
A  lew  before  l)eing  drawn  ; ''  or  where  the  clerk,  having  to 
■draw  two  panels  for  different  courts,  drew  the  entire  num- 
ber of  names  at  once,  and  then  ai-bitrarily  designated  half 
of  them  to  serve  as  jurors  in  one  court  and  half  in  the 
other." 

(3)  Provinons  of  Particular  Statutes. —  The  policy  of 
<lisallowin<r  challenijes  to  the  array  on  account  of  informal- 
ities  in  drawing  the  panel  has  found  expression  in  statutes 
in  several  of  the  States,  which  provide  that  challenges  to 
the  array,  or  to  the  panel,  as  it  is  sometimes  called,  shall 
be  founded  only  on  a  material  departure  from  the  forms 
prescribed  in  respect  of  the  drawing  of  the  jury,  or  upon 
the  intentional  omission  of  the  sheriff  to  summon  one  or 
more  jurors    drawn. ^     In    Indiana    •'  no    challenge    to    the 

1  Jones  V.  State.  3  Blackf.  37. 

2  Anon.,  1  Brown  (Penn.)  121. 

•■'  Baker  v.  Steamer  Milwaukee,  14  Iowa,  214. 

*  McCloskey  v.  Tlie  People,  '>  Park.  C.  R.  308.  Such  persons  are  termed 
non-jurors;  they  are  mere  interlopers,  and,  not  being  subject  to  chal- 
lenge personally,  their  presence  vitiates  the  whole  panel.  Norman  v. 
Beamont,  Willes,  484;  Abbott,  C.  J.,  in  Rex  v.  Treniaine,  7  Dowl.  & 
Ry.  084.  G87;  .s-.  c,  16  Eng.  C.  L.  318;  «.  c,  sub.  nam.  Kcx  v.  Tremearne, 
f)  Barn.  &  Cress,  254;  11  Eng.  C.  L.  218. 

*  Pringle  v.  Huse,  1  Cow.  432. 

^  Gardner  v.  Turner,  9  Johns.  2G0.  Aliter.  where  he  drew  each  panel 
sei)arately.  though  botli  were  drawn  at  the  same  time.  Crane  v.  D5'gert, 
4  Wend.  G75. 

''  Cal.  Penal  Code,  §  10.^9;  Comp.  L.  Xev.  1873,  §  1947;  Laws  Utah, 
1878,  Code  Cr.  Proc,  §  227;  Miller,  R.  C.  Iowa,  1880,  §§  27G4,  4400;  Stat. 
at  Large,  Minn.  1873,  p.  1054,  §  221;  Ark.  Dig.  Stat.  1874,  §  1902;  Bul- 
letfs  Ky.  Codes  (Crim.).  p.  40,  §  199.     The  grounds  of  challenge  stated 


§  144.]       WHO  MAY  CONDUCT  THE  DRAWING.  123 

array  shall  be  permitted  because  of  any  informality  in  the 
impanelling  or  selecting  of  a  jury."  ^  In  Mississippi  no 
challenge  to  the  array  is  i)ermitted  except  for  fraud. '"^  In 
Texas  but  one  cause  of  challenge  to  the  array  is  allowed, 
and  that  relates,  not  to  the  drawing,  l)ut  to  the  summoning 
of  the  jury.^  By  the  New  York  Code  of  Criminal  Pro- 
cedure "  a  challenge  to  the  panel  can  be  founded  only  on  a 
material  departure,  to  the  prejudice  of  the  defendant,  from 
the  forms  prescribed  by  the  Code  of  Civil  Procedure  in  re- 
spect to  the  drawing  and  return  of  the  jury,  or  on  the 
intentional  omission  of  the  sheriff  to  summon  one  or  more 
of  the  jurors  drawn."'* 

§  144.  Persons  who  may  condvict  the  Drawing". —  (!•) 
In  Case  of  Common  Juries. —  The  clerk,  jury-commis- 
sioner, or  other  officer  whose  duty  it  is  to  draw  the  panel, 
is  regarded  for  many  purposes  as  the  substitute  of  the 
sheriff  at  common  law.^  But  he  has  no  discretion,  such 
as  is  vested  in  the  sheriff  at  common  law,  as  to  what  per- 
sons he  will  place  upon  the  panel.  On  the  contrary,  as 
may  be  inferred  from  what  has  preceded,  the  duty  is  purely 
ministerial.  It  may,  therefore,  be  performed  by  a  deputy, 
when  legally  appointed,"  and  a  general  statute  authorizing 
olerks  of  courts  to  appoint  deputies  to  perform  the  duties 
of  such  clerks  is  sufficient  to  render  valid  the  drawing  of  a 
panel  by  such  a  deputy,  in  the  absence  of  the  clerk, 
although  the  statute  regulating  the  drawing  of  jurors  makes 
no  mention  of  such  a  substitution."  Nor  is  it  any  ground 
for  objecting  to  the  legality  of  the  drawing  that,  besides 


in  such  statutes  are  exclusive.  State  v.  Arnold,  12  Iowa.  479;  State  v. 
Kaymoiid,  11  Nev.  98. 

1  2  Ind.  Stat.  1876,  p.  30.  §  6. 

^  Rev.  Code  Miss.  1880,  §  1G94.  See  Hare  v.  State.  4  How.  (Miss.)  189 ; 
Thomas  v.  State,  5  Id.  20;  King  v.  State,  5  Id.  730. 

?  Ante,  §  130,  note. 

<  Laws  N.  Y.  1881,  ch.  442,  §  362. 

*  Gardner  v.  Turner.  9  Johns.  260:  Jones  v.  State,  3  Blaekf.  37;  Mit- 
chell v.  Likens,  Id.  258;  Mitchell  v.  Denbo,  Id.  259. 

8  State  V.  Gaj',  25  La.  An.  472. 

'  People  V.  Fuller,  2  Park.  C.  R.  16. 


124  CHALLENGE  TO  THE  ARRAY.         [CH.  IX. 

the  proper  officers,  another  was  in  attendance  and  par- 
ticipated in  it.'  Nor  will  an  occasional  absence  of  one  of 
the  officers  charged  with  the  drawing  affect  its  validity, 
where  no  names  are  drawn  during  his  absence.^  An  appel- 
late court  will  not  review  the  finding  of  the  trial  court  as 
to  whether  a  quorum  of  the  body  of  officers  charged  with 
the  duty  of  drawing  the  panel  was  present  when  this  was 
done.^ 

By  the  present  law  of  New  York  it  is  not  a  good  cause 
of  challenge  to  the  array,  in  an  action  in  a  court  of  record, 
that  the  officer  who  drew  the  panel  is  a  party  to,  or  inter- 
ested in  the  action,  or  counsel  or  attorney  for,  or  related  to 
a  party ;  nor  that  the  officer  by  whom  the  jurors  were  sum- 
moned is  a  party  to,  or  interested  in  the  action,  or  related 
to  a  party,  unless  it  is  shown  that  one  or  more  of  the  jurors 
drawn  were  not  notified  to  attend,  and  that  the  omission 
was  intentional.'*  An  earlier  statute  of  the  same  State  pro- 
vided, in  the  case  of  a  constable,  that  the  officer  who  served 
either  the  original  or  jury  process  in  the  case,  might  act  as 
the  attorney  for  either  party  in  any  other  stage  or  proceed- 
ing in  the  cause,  except  to  appear  and  advocate  for  either 
party  at  the  trial. ^  The  mere  fact,  then,  that  the  constable 
appeared  for  the  defendant  and  put  in  the  plea  of  the  gen- 
eral issue,  did  not  disqualify  him  from  serving  the  jury 
process,  or  furnish  good  cause  of  challenge  to  the  array ; 
nor  did  the  fact  that  the  constable  who  served  the  jury  proc- 
ess, acting  as  the  agent  of  one  of  the  parties,  engaged  an 
attorney  to  appear  for  such  party  at  the  trial.''  Nor  was  it 
in  that  State  a  good  ground  of  challenge  to  the  array  that, 
at  the  trial,  the  circuit  clerk  was  attorney  for  one  of  the 
parties,  and  was  so  at  the  time  of  drawing,  making  and 
arraying  the  panel.     The  reason  was  that  the   legislature 

1  Hunt  V.  Mayo,  27  La.  An.  197;  State  v.  Bohan,  19  Kan.  28. 

2  State  V.  Arata,  32  La.  An.  193. 

3  Ibid. 

*  N.  Y.  Code  Rem.  Jus.,  §§  1177,  1178.  See  also  Comp.  L.  Mich.  1871, 
§§  6013,  6014. 

*  2  R.  S.  233,  §  44. 

«  Miles  V.  Pulver,  3  Den.  84. 


§    144.]  WHO  MAY  CONDUCT  THE  DRAWING.  125 

had  provided  that  clerks  of  the  circuit  court  might  practice 
as  attorneys  in  the  Supreme  Court. ^ 

In  Indiana  a  person  interested  in  a  suit  cannot  participate 
in  the  drawing  of  the  panel  by  which  it  is  to  be  tried. ^ 

The  Supreme  Court  of  South  Carolina  lays  down  the  rule 
that  all  the  obligations  and  disabilities  which  the  common 
law  imposed  upon  the  sheriff  in  the  selection  of  juries,  will 
be  enforced  whenever  the  acts  of  those  charged  with  the 
same  duty  are  m  question.  "  The  rights  of  parties  in  civil 
cases,"  said  Moses,  C.  J.,  "  are  in  no  way  diminished  by 
the  change  in  the  mode,  and  those  accused  by  indictments 
are  entitled  to  the  benelit  of  any  exception  which  would 
avail  them  under  the  common  law  system."  Accordingly 
it  was  held  to  be  a  good  ground  of  challenge  to  the  array, 
that  the  jury  commissioner  who  assisted  in  the  drawing  was 
a  first  cousin  of  the  person  for  whose  murder  the  challeng- 
ing party  was  upon  trial  .^  But  this  decision  is  believed  to 
be  unsound,  especially  since  the  almost  universal  practice  is 
to  draw  the  names  by  lot,  in  which  case  the  officer  objected 
to  could  not  influence  the  drawing  except  through  an  act  of 
positive  fraud,  which  the  law  ought  not  to  presume. 

(2.)  In  Case  of  Special  or  Struck  Juries. —  It  seems  to 
have  been  a  matter  of  some  doubt  according  to  the  early 
cases,  whether  a  panel  of  special  jurors  was  for  any  cause 
subject  to  a  challenge  to  the  array.  In  Rex  v.  Burridge,^ 
an  information  for  a  misdemeanor,  after  each  party  bad 
struck  twelve  from  a  panel  of  forty-eight,  and  the  remain- 
ing twenty-four  had  been  returned  for  the  trial  of  the  cause, 
the  defendant  challenged  the  array  for  want  of  hundredors  ; 

^  Wakeman  v.  Sprague,  7  Cow.  720.  The  court  in  this  case  could  per- 
ceive hardly  a  chance  for  the  clerk  to  make  an  unlawful  selection,  even 
if  so  minded.  The  names  were  drawn  by  lot  in  public,  after  ample 
public  notice  of  the  time  and  place  of  drawing.  The  clerk's  character 
of  attorney  was  known  to  the  opposite  party,  who  might  have  attended 
the  drawing,  and  for  any  specitic  abuse  of  the  clerk,  the  right  of  chal- 
lenge still  remained. 

'^  2  Ind.  Stat.,  1876,  p.  29,  §  1. 

*  State  V.  McQuaige,  5  So.  Car.  429. 

■•  1  Strange,  593 ;  s.  c,  2  Ld.  Raym.  1364. 


126  CHALLENGE  TO  THE  ARRAY.         [CH.  IX, 

whereupon  the  proseeutor  moved  for  an  attachment  against 
the  defendant  us  being  guilty  of  a  contempt.  It  appearing 
upon  the  motion  that  the  defendant's  agent,  in  striking  out 
his  twelve,  had  expunged  all  the  hundredors,  the  attach- 
ment was  granted.  In  a  later  case,  however,^  an  informa- 
tion in  the  nature  of  a  quo  ivarranto,  a  jury  having  been 
struck,  the  prosecutor  took  out  the  venire  to  the  sheriff  of 
Cheshire.  The  d(>fendant  challenged  the  array  on  account  of 
an  interest  the  sheriff  had  as  ])eing  a  freeman  of  Chester 
whose  rights  were  to  be  tried.  It  w^as  of  course  insisted 
that  the  interest  of  the  sheriff  had  not  controlled  the  selec- 
tion of  the  jurors,  since  his  duty  was  only  to  return  the  list  as 
struck.  But  inasmuch  as  the  sheriff  retained  the  power  of 
marshaling  the  panel,  and  putting  whom  he  pleased  first, 
it  was  determined  to  be  a  good  cause  of  challenge,  and  the 
array  was  quashed.^ 

But  unindifferency,  as  it  is  termed  in  the  English  books, 
of  the  officer  by  whom  a  special  or  struck  jury  has  been 
nominated,  was  never  ground  in  England  for  challenging 
the  array .^  So,  in  this  country,  the  fact  that  the  clerk  and 
auditor,  l)y  whom  the  list  of  such  a  jury  was  selected,  had 
expressed  an  opinion  as  to  the  guilt  of  the  defendant,  based 
upon  evidence  which  they  had  heard  upon  a  former  trial, 
was  held  no  ground  for  challenging  the  array.'*  But  fraud 
in  the  preparation  of  the  list  from  which  a  special  jury  is 
struck  will  afford  a  good  ground  for  such  a  challenge  ;  ^  and 
in  New  Jersej^  where  the  sheriff  exercises  powers  with  re- 
spect to  the  summoning  of  jurors,  similar  to  those  exercised 
by  the  sheriff  at  common  law,  it  has  been  held  a  good 
ground  for  challenging  the  array  of  a  special  jury,  that  it 

1  Rex  V.  Johnson,  2  Str.  1000. 

*  Says  the  reporter :  "  The  case  of  Bnrridge  was  cited ;  *  *  ♦  but 
the  court  did  not  seem  to  relisli  that  case,  and  said  it  might  be  an  au- 
thority in  one  exactly  circumstanced  as  that  was,  but  in  no  other."  2  Str. 
1001. 

3  Rex  V.  Edmunds,  4  Barn.  &  Aid.  471.  See,  also,  Rex  v.  Despard,  2 
Man.  &  Ryl.  406. 

<  Webb  V.  State,  29  Ohio  St.  3.51. 

6  Maffett  V.  Tonkins,  6  N.  J.  L.  228. 


§    146.]    IRREGULARITIES  IN  SUMMONING  THE  PANEL.  127 

was  returned  by  a  sheriff's  deputy  who  had  not  taken  the 
oath  of  office.^  In  New  York  it  has  been  held  that  the 
statutory  mode  of  obtaining  a  special  jury,  being  a  special 
proceeding,  designed  for  a  particular  purpose,  must  be 
strictly  pursued.^ 

§  145.  Time  of  Conducting'  the  Drawing. —  Provisions 
of  statutes  respecting  the  time  when  the  drawing  shall  take 
place  are  also  treated  as  being  merely  directory  to  the 
officers.^  But  where  the  statute  provided  that  the  drawing* 
should  take  place  at  least  fourteen  days  prior  to  the  com- 
mencement of  the  term,  and  the  panel  was  drawn  fourteen 
days  prior  to  the  holding  of  the  court,  it  was  held  good 
ground  for  challenging  the  array ;  the  purpose  of  thtv 
statute  being,  in  the  opinion  of  the  court,  to  allow  both  the 
people  and  the  accused  fourteen  days  in  which  to  examine 
the  list,  and  investigate  the  character,  qualifications,  and 
bias  of  the  persons  drawn .^  But  a  panel  drawn  more 
than  two  months  prior  to  the  holding  of  the  court  was 
held  good  under  the  same  statute.^ 

§  146.  Irregularities  in  Summoning  the  Panel. —  (!•) 
Process  of  Summoning  under  American  Statutes. —  In  a 
previous  chapter  we  have  discussed  and  distinguished  the 
process  of  summoning  jurors  at  common  law  from  that 
practiced  in  the  several  States.*^  We  there  showed  the 
diminished  importance  of  the  writ  of  venire  facias,  or 
other  process  performing  the  functions  of  this  writ  under 
another  name.^ 

(2.)  Defects  in  Venire  Facias  no  Ground  of  (Jhallenge . 
—  The  important  steps  in  procuring  a  jury  are  the  selecting 
and  drawing  of  the  jurors  who  are  to   serve.     The  act  of 

J  Denn  v.  Evaul,  1  N.  J.  L.  283. 

2  People  V.  Tweed,  50  How.  Pr.  262,  263. 

3  Wilson  V.  State  Bank,  3  La.  An.  196,  198;  State  v.  Pitts,  58  Mo.  55G; 
State  V.  Knight,  61  Mo.  373. 

*  Powell  V.  People,  5  Hun,    69. 

»  Crane  v.  Dygert,  4  Wend.  675.     But  see  State  v.  Hascall,  6  N.  H.  35i, 
360. 

•  Ante^i  §  66,  et  seq. 

^  Ante,  §  70,   ct  seq. 


128  CHALLENGE  TO  THE  ARRAY.  [CH.  IX. 

simimoniiig  them  is  nothing  more  than  the  act  of  notifying 
them  to  attend ;  and  the  writ  which  issues  to  the  sheriff  for 
that  purpose  is  little  more  than  a  memorandum  of  the 
names  of  those  he  has  to  summon,  on  which  he  may  make  a 
return,  to  the  end  that  those  who  are  thus  notified,  and  who 
do  not  attend,  may  be  punished  for  contempt.  In  point  of 
substance  and  sense,  it  is  wholly  immaterial  whether  they 
attend  after  being  summoned  or  witJioul  being  summoned.^ 
It  follows  that  objections  to  a  panel,  on  account  of  defects 
and  informalities  in  the  writ  under  which  they  were  sum- 
moned, will  not  be  listened  to.^ 

(3.)  Objection  to  the  Cleric  who  issues  the  Venire  Facias. 
—  For  like  reasons  it  is  clear  that  no  defect  in  the  clerk, 
who  performs  the  merely  ministerial  function  of  issuing  the 
writ  of  venire  facias,  will  afford  ground  for  challenging 
the  array.  It  has  been  so  held  in  New  England,  where, 
under  a  system  already  pointed  out,'^  the  clerk  still  possibly 
retains  some  power  in  determining  from  what  towns  jurors 
shall  be  selected.  Accordingly,  where  the  clerk  of  the 
court  was  a  party  to  the  suit,  it  was  held  to  be  no  ol^jection 
to  the  array  that  he  issued  the  warrant  to  the  constable  to 
summon  the  jury.  In  the  particular  case  the  clerk  simply 
designated  four  towns  from  which  the  panel  was  to  be  sum- 
moned. The  jurors  were  drawn  in  each  town  by  the  author- 
ities thereof  from  the  list  prepared  by  the  town  council.* 

(4.)  Failure  to  issue  Venire  Facias. —  Where  the  names 
constituting  a  panel  have  been  regularly  selected  and  drawn, 
and  the  panel  thus  selected  and  drawn  have  assembled  in 
court,  it  is  clear  upon  principle  that  it  is  wholly  immaterial 
how  they  w^ere  induced  to  attend, — whether  a  formal  writ 
issued,  or  whether  they  were  notified  ]>y  the  sheriff  or  some 
other  officer,  without  the  issuing  of  a  formal  writ.  To  dis- 
miss a  panel,  or  to  arrest  a  judgment,  for  this  reason, 
would  exhibit  a  childish  adhesion  to  mere  form,  reproachful 

J  Ante,  §  77. 

2  Ante,  §§  70,  74. 

=>  Ante,  §  59. 

"  Hart  V.  Tallmadge,  3  Day,  381. 


§   146.]     IRREGULARITIES  IN  SUMMONING  THE  PANEL.  129 

to  llie  administration  of  justice.^  However,  the  reports 
present  some  decisions  of  this  character.'^ 

(5.)  Failure  to  summon  Particular  Persons  drawn. — 
The  omission  of  the  sheriff  to  summon  one  or  more  of  the 
persons  who  have  been  drawn  as  jurors  is  one  of  the  means 
still  left  him,  even  under  the  carefully  guarded  American 
statutes,  of  influencing  the  composition  of  particular  juries  f 
and  where  this  omission  is  intentional,  it  is  recognized  in 
several  of  our  statutes  as  a  ground  for  challenging  the 
array.*  But  the  failure  to  summon  a  particular  juror  whose 
name  has  been  drawn  is  not  per  se  ground  of  challenging 
the  array.  Thus,  where  a  special  jury  had  been  struck, 
and  the  testimony  disclosed  that  the  under-sheriff  directed 
the  summons  of  a  person  who  had  been  selected  as  one  of  the 
panel,  but  the  inferior  officer,  whose  duty  it  was  to  serve 
the  summons,  sent  it  to  the  person  named  in  a  very  negli- 
gent manner,  instead  of  serving  it  himself,  the  court  of 
King's  Bench  regarded  this  circumstance  as  affording  no 
inference  of  partiality  in  the  mind  of  the  high  sheriff  or 
his  under-sheriff.^ 

(6.)  Failure  to  make  Return. —  Although,  where  the 
writ  issues,  a  return  ought  regularly  to  be  made  thereon, 
even  though  not  expressly  required  by  statute,  yet,  the 
failure  to  make  a  return  is  only  a  formal  defect,  and  will 
not  afford  ground  for  challenging  the  array .^ 

(7.)  Defects  in  the  Return. —  For  stronger  reasons,  de- 
fects in  the  return  will  afford  no  grounds  for  such  challenge,^ 
though  for  substantial  defects,  such  as  a  failure  to  sign  the 
return,  it  may  be  quashed,  or  the  court  may  direct  the  offi- 
cer to  amend  it.** 


J  Ante,  §  70. 

2  Ibid. 

3  Ante,  §  130. 

*  Ante,  §  143,  subsec.  3. 

''  Rex  V.  Edmunds.  4  Barn.  &  Aid.  471,  489.    See  also,  Rex  v.  Hunt 
4  Barn.  &  Aid.  430. 
^  Ante,  §  78.  subsec.  1. 
'  Ante,  §  78,  subsec.  4. 

*  Ibid.,  subsec.  2. 

(9) 


130  CHALLENGE  TO  THE  AUUAY.         [CH.  IX. 

(8.)  Time  of  Mal-ing  Return . —  We  have  previously 
seen  that,  1)V  analogy  to  the  rule  rehiting  to  statutes  which 
prescribe  the  time  of  drawing  the  names  of  the  panel,'  it 
has  been  held  that  the  time  prescribed  by  statute,  within 
which  the  sheriff  should  make  return  of  the  writ,  is  direct- 
ory merely  .- 

(9.)  Jury  summoned  bij  Jmproper  Officers. —  Where  the 
list  of  those  to  be  summoned  is  selected  and  drawn,  as  al- 
ready stated,  it  would  seem,  for  reasons  already  suggested, 
unimportant  whether  they  are  summoned  by  the  officer  des- 
ignated by  statute,  or  by  some  other  officer,'^  unless  the  cir- 
cumstances raise  a  suspicion  that  some  of  them  have  been 
purposely  returned  not  found.  Thus,  it  has  been  held  that, 
when  the  sheriff  has  been  directed  to  summon  a  jury,  he 
may  do  it  himself,  or  cause  it  to  be  done  by  his  deputies,  or 
by  constables.*  But  this  statement  will  obviously  not  hold 
good  in  case  of  the  summons  of  a  special  venire,  as  practiced 
in  some  of  the  States.  We  allude  to  jurisdictions  in  which 
the  sheriff  is  directed  to  go  out,  in  case  of  a  deficiency  of 
the  regular  panel,  or  where  a  special  venire  is  awarded  in  a 
capital  case,  and  bring  in  such  persons  as  he  sees  fit.  Here 
he  exercises  the  power  of  selection  confided  to  the  sheriff  at 
common  law,  and  the  character  of  the  person  by  whom  such 
an  important  duty  is  performed  is  very  material.*  But 
where  the  special  venire  consists  of  additional  names  drawn 
from  the  jury  box  or  wheel,  and  the  officer  acts  merely  as  a 
messenger  to  notify  them  to  come  into  court,  it  is  not,  in 
the  absence  of  circumstances  creating  a  suspicion  of  an  in- 
tentional omission  to  summon  some  of  them,  a  matter  of 
much  moment  by  whom  the  duty  is  ix-rformed. 

i^nfe,  §145. 

2  Ante,  §  78,  siibsec.  3. 

*  Ante,  §§  77,  i:W. 

*  People  V.  McGeeiy,  (5  Park.  Cr.  R.  6."):?. 

5  By  the  Criminal  Practice  Act  of  California,  §  WM  (Penal  Code  Oal., 
§  1064),  it  is  provided  that  wlien  a  panel  is  formed  from  persons  whose 
names  are  not  drawn  as  jurors,  a  challenge  may  be  taken  to  the  panel 
on  account  of  any  bias  of  the  ofHcer  who  summoned  them,  which  would 
be  a  good  cause  of  cliallenge  to  a  juror.     See  People  v.  Coyodo,  40  Cal. 


§   147.]    RE-SUMMONING  MEMBERS  OF  QUASHED  PANEL.  131 

(10.)  Objections  to  Particular  Persons  smjimoned.  —  Ob- 
jections to  the  persons  summoned,  in  the  absence  of  fi'aud, 
such  as  we  have  already  considered,  are  generally,  if  not 
always,  made  by  challenges  to  the  polls,  and  not  by  chal- 
lenges to  the  array.  Thus,  it  is  not  a  good  cause  of 
challenge  to  an  array  brought  in  under  a  special  venire^ 
that  some  of  the  persons  summoned  are  incompetent, 
there  being  no  evidence  of  unfairness  on  the  part  of  the 
summoning  officer ;  ^  nor  that  some  of  them  are  non-resi- 
dents, if  they  were  summoned  through  inadvertence  merely. 
But  it  is  otherwise  where  such  persons  have  been  inten- 
tionally summoned  by  the  sheriff ;  but  this  fact  must  be 
demonstrated  to  the  satisfaction  of  the  court  by  the  party 
complaining,  upon  the  motion  to  quash. ^  Nor  is  it  a 
ground  of  such  challenge  that  the  sheriff  had  knowingly 
summoned  persons  who  were  witnesses  for  the  prosecu- 
tion, or  who  had  sat  as  jurors  upon  a  former  trial  of  the 
same  case.^ 

§  147.  Re-suniiiioning  Members  of  Quashed  Panel. — 
The  inutility  of  making  challenges  to  the  array,  under  the 
American  system,  is  illustrated  by  a  series  of  cases  which 
hold  that  where  the  array  has  been  challenged,  the  chal- 
lenge sustained,  the  panel  quashed,  and  a  special  venire 
or  other  order  or  precept  issued  to  the  sheriff  to  bring  in 
new  jurors,  he  may  properly  re-summon  the  members  of 
the    quashed    panel,*   unless    the    panel  has    been    quashed 

586;  People  v.  Welch,  49  Cal.  174;  People  v,  Rodriguez,  10  Cal.  50. 
Undoubtedly  this  statute  is  nothing  more  than  a  declaration  of  a  rule  of 
the  common  law,  under  which  the  sheriff  exercised  both  the  office  of 
selecting  and  summoning,  and  any  bias  in  a  juror  which  constituted  a 
good  cause  to  challenge  him  would,  if  it  existed  in  the  sheriff,  be  a 
good  cause  of  challenge  to  the  array.     Ante,  §  130. 

1  Mitchell  V.  State,  43  Tex.  517. 

»  Gray  v.  State,  55  Ala.  86;  Hall  v.  State,  40  Ala.  G98.  See  also  Hayes 
V.  Reg.,  10  Irish  L.  53. 

3  Commander  V.  State,  60  Ala.  1;  Baker  v.  Harris,  1  Winst.  (N".  C.) 
277. 

*  Caperton  v.  Nickel,  4  W".  Va.  173;  State  v.  Degonia,  69  Mo.  485; 
State  V.  Owen,  Phill.  L,  425;  State  v.  McCurry,  63  N.  C.  33;  Smith  v. 
State,  4  N'eb.  277.    But  see  Combs  v.  Slaughter,  Hard.  (Ky.)  62.     It  has 


132  CHALLENGE  TO  THE  ARRAY.  [CH  IX. 

because  the  wheel  lias  been  tampered  with  ;  '  and  this  ex- 
ception, on  principle,  will  extend  to  cases  where  the  panel 
has  been  quashed  on  account  of  any  other  fraud. 

been   held  that,  upon  process  directed  to  the  coroner,  that  officer  can 
summon  the  same  panel.    Paj^ne  v.  McLean,  1  Up.  Can.  K.  B.  (O.  S.) 
444.     Compare  Norbury  v.  Kennedy,  3  Crawf.  &  Dix,  (L-.)  Cir.  124. 
1  Kell  V.  Brillinger,  84  Pa.  St.  276. 


CH.  X.]         PEREMPTORY  CHALLENGES  133 


CHAPTER  X. 


or  PEREMPTORY    CHALLENGES. 

SECTION. 

152.  Kinds  of  Challenge  to  tbe  Polls. 

153.  Lord  Coke's  Classification  of  Challenges  o  the  Polls. 

154.  Peremptory  Challenges  at  Common  Law. 

155.  The  Right  how  affected  by  Early  Statutes. 

156.  The  Eight  not  restricted  to  Capital  Cases. 

157.  Challenging  more  than  allowed  by  Law. 

158.  The  Eight  of  the  Prosecution  to  stand  .Jurors  aside. 

(1.)  History  and  Practice  in  England  and  Canada. 
(2.)  Practice  in  the  United  States. 

159.  The  Eight  of  Challenge  not  a  Eight  to  select. 

160.  The  Eight  confined  to  the  Trial  of  the  Main  Issue. 

161.  Not  allowed  in  Case  of  Special  Jurors. 

162.  Peremptory  Challenges  by  Defendants  jointly  indicted. 

(1.)  To  the  same  Number  as  allowed  a  single  Defendant. 

(2.)  Such  Defendants  jointly  or  severally  tried  in  Discretion 
of  Court. 

(3.)  Separate  Trials  cannot  be  demanded  as  a  Matter  of 
Eight. 

(4.)  Number  of  Peremptory  Challenges  allowed  the  Prosecu- 
tion against  Joint  Defendants. 

(5.)  The  foregoing,  how  affected  by  Statute. 

163.  By  several  Persons,  Plaintiffs  or  Defendants,  in  a  Civil  Suit. 

164.  Peremptory  Challenges  in  Federal  Courts. 

165.  Peremptory  Challenges  under  the  Statutes  of  the  several  States. 

(1.)  Power  of  Legislature  over. 

(2.)  Granted  in  Civil  Cases. 

(3.)  How  in  Felonies  and  Misdemeanors. 

(4.) — (41.)  Under  Particular  Statutes. 

166.  Construction  of  the  foregoing  Statutes. 

(1.)  Suits  prosecuted  upon  Information,  whether    Civil    or 

Criminal. 
(2.)  Where  the  Punishment  may  be  Capital. 
(3.)  Or  for  a  Definite  Term  of  Imprisonment. 


134  PEREMrTORY  CHALLENGES.  [CH.  X. 

§  152.  Kinds  of  Challenge  to  the  Polls. —  A  challenge 
to  individujil  jurors  may  be  either,  1.  rcremptory  ;  or, 
2.  For  cause.  The  })eremptory  challenge  was  allowed  at 
common  law  in  criminal  cases  only,  and  seldom  in  any 
other  than  those  punished  capitally.  As  stated  by  Lord 
Coke,  it  was  allowed  the  accused  "  upon  his  owne  dislike 
without  shew^ing  of  any  cause ;"  ^  and  this  is  a  correct 
definition  of  the  challenge  to-day,  as  it  exists  in  both  civil 
and  criminal  cases. 

The  challenge  for  cause  has  from  the  earliest  period 
been  taken  in  one  of  two  forms:  1.  Principal;  or,  2.  To 
the  favor.  These  will  be  recognized  as  the  same  divisions 
which  originall}'  existed  in  the  challenge  to  the  array.' 
And  what  we  have  before  said  in  respect  to  the  distinction 
between  these  forms,  as  applied  to  the  array,  is  true  as 
applied  to  the  indi\idual  juror,  mutatis  mutandis.  The 
principal  challenge  shows  a  cause  which  positively  disquali- 
fies the  juror  from  sitting  in  the  case.^  The  challenge  to 
the  favor,  on  the  contrary,  is  grounded  upon  circumstances 
from  which  a  suspicion  of  bias  in  the  mind  of  the  juror  for 
or  against  a  party  may  arise.  The  effect  of  such  circum- 
stances upon  the  mind  of  the  juror  is  examined  by  triors, 
who  find  the  challenge  true  or  not  according  to  their  dis- 
cretion. The  principal  challenge,  however,  is  always  tried 
by  the  court.* 

We  have  hitherto  seen  that  the  distinction  between  the 
two  forms  of  challenge  to  the  array  has  become  obsolete. 
This  is  true  in  a  measure  of  the  forms  of  challenge  for 
cause ;  but  in  the  challenging  of  individual  jurors  the  dis- 
tinction is  not  without  value,  and  will  probably  be  retained, 
in  theory  at  least,  for  some  time  to  come.  In  a  late 
opinion  by  the  Court  of  Appeals  of  New  York  it  was  stated 
per  curiam:  "  There  has  always  been  a  distinction  between 

1  Co.  Litt.  156.  b. 

2  AnU,  §  126. 

3  People  V.  Stout,  4  Park.  Cr.  K.  71.  109;  State  v.  Potter,  18  Conn.  166, 
171. 

*  See  post,  chap.  XII. 


§  153.]  LORD  coke's  classification.  135 

these  two  causes  of  challenge  ;  and  there  is  yet,  notwith- 
standing modern  legishition  on  the  subject."  ^  "In  modern 
practice,"  said  Hallett,  C.  J.,  "triors  have  not  been 
called,  and  the  fact  as  well  as  the  law  has  been  determined 
by  the  court ;  but  it  is  considered  that  this  circumstance 

does  not  furnish  ground  for  disregarding  the  distinction  be- 
es Co 

tween  the  principal  causes  of  challenge  and  challenges  to 
the  favor."  ^ 

§  153.  Lord  Coke's  Classification  of  Challenges  to  the 
Polls.  —  Lord  Coke's  classification  of  challenges  to  the 
polls  is  as  follows.  Primarily  he  divided  them  into  four 
classes:  1.  Peremptory;  2.  Principal;  3.  Which  induce 
favor;  4.  For  default  of  hundredors.  He  subdivided  the 
principal  challenge  as  follows :  1 .  Propter  honoris  re- 
spectum;  2.  Propter  defectum;  3.  Propter  affectum-,  4. 
Propter  delictum.  The  first  was  based  upon  that  clause 
of  the  Magna  Charta  which  granted  to  every  freeman  a 
trial  by  a  juiy  of  his  peers.  One  of  the  nobility,  there- 
fore, if  accidentally  placed  upon  a  jury,  might  be  chal- 
lenged by  either  party,  or  by  himself,  in  respect  of  honor  as 
the  phrase  is  translated.  The  three  other  subdivisions  are 
familiar,  and  exist  in  practice  to-day,  —  the  second  being 
based  upon  some  deficiency  in  the  juror  in  respect  to  the 
qualifications  required  by  law ;  the  third,  upon  the  par- 
tiality of  the  juror  ;  the  fourth,  upon  his  conviction  for 
some  offense  suflSciently  heinous  or  infamous  in  law  to  ex- 
clude him  from  jury  service. 

At  this  point  we  must  note  a  defect  of  classification  not 
uncommon  in  the  writings  of  this  learned  commentator. 
Challenges  propter  defectum  he  subdivides  into  challenges  for 
defect  of  country,  freedom,  freehold  and  hundredors .^  This 
last  will  be  recognized  as  one  of  the  main  divisions  of  chal- 
lenges to  the  polls.  The  climax  of  confusion  is  reached  when 
the  challenge  propter  affectum  is  subdivided  into  principal 

1  Greenfield  v.  People,  74  N.  Y.  277. 

2  Solander  v.  People,  2  Colo.  48,  58.  See  also  State  v.  Howard,  17 
X.  H.  171,  191. 

3  Co.  Litt.  157.  a. 


136  rEREMPTORY  CHALLENGES.  [CH.  X. 

challenges  and  those  to  the  favor. ^  This  unhappy  arrange- 
ment is  a  matter  of  historical  interest  only.  It  causes  no 
confusion  in  practice  at  the  i)resent  time,  since  the  divisions- 
previously  indicated  have  long  since  become  recognized  as 
sufficiently  definite  for  purposes  of  practice. 

§  154.  Peremptory  Challenges  at  Coininon  Law. —  It 
is  clear  that  the  right  of  peremptory  challenge  had  no  ex- 
istence in  civil  cases,  and  was  confined  to  a  limited  number 
of  criminal  cases,  viz.,  treason,  misprision  of  treason  and 
felonies.  The  number  originally  allowed  was  thirty-five, 
one  short  of  three  complete  juries.^  ^Vhy  this  particular 
number  was  pitched  upon,  is  a  matter  of  uncertainty  which 
it  would  be  profitless  to  investigate,  as  the  old  writers 
afford  little  in  the  way  of  cogent  reasons  for  the  choice.^ 
The  number  is  probably  arbitrary  like  the  challenge  itself. 

§  155.  The  Rlj?ht  how  affected  hy  early  Statutes. —  By 
an  early  statute  *  the  allowance  was  reduced  to  the  number 
of  twenty  in  cases  of  petit  treason,  murder,  and  felony. 
This  legislation  appears  to  have  been  designed  for  a  tem- 
porary purpose,  the  concluding  clause  of  the  section  being, 
"this  act  to  endure  to  the  end  of  the  next  parliament." 
The  act,  however,  was  continued  in  force  until  finally,  by 
a  subsequent  statute,'^  it  was  made  perpetual.  This 
statute,  it  will  be  noticed,  left  unaffected  challenges  in 
cases  of  high  treason  and  misprision  of  high  treason, 
which,  by  a  later  statute  of  the  same  reign,  were  entirely 
taken  away,"  but  were  afterwards  restored  by  the  con- 
struction put  upon  a  statute  providing  that  "all  trials 
hereafter  to  be  had,  awarded  or  made  for  any  treason, 
shall   l)e  had    and   used,  only  according  to  the  due  order 


1  Co.  Litt.  157.  a. 

2  Co.  Litt.  1.56.  b;  2  Hawk.  P.  C,  ch.  43,  §  7;   2  Hale  P.  C.  2GS;  Trials 
per  Pais,  (172.5)  455. 

!)  See  an  explanation  in  Bac.  Abr.'Juries  E.  9,  from  Lanibard,  Bk.  4, 
c.  14;  Gilbert \s  Hist.  C.  P.  99. 
<  22  Hen.  VIII.,  c.  14,  §  G. 
»  32  Hen.  VIII.,  c.  3. 
«  32  Hen.  VIII.,  c.  23,  §  3. 


§   156.]      RIGHT  NOT  RESTRICTED  TO  CAPITAL  CASES.  137 

and  course  of  the  common  laws  of  this  realm,  and  not 
otherwise."  ^ 

§    156.    The  Riglit  not  restricted   to   Capital  Cases. — 

It  is  said  again  and  again  by  the  early  text  writers  that 
peremptory  challenges  are  allowed  in  favorem  vitm.'^ 
There  is  also  a  dictum  of  Lord  Chief  Justice  North  upon 
the  trial  of  an  indictment  for  a  misdemeanor,  where,  upon 
the  accused  attempting  to  challenge  peremptorih^  he  said  : 
"You  cannot  challenge  peremptorily  in  this  case,  it  not 
being  for  your  life."  ^  The  language  of  Blackstono  is 
familiar:  "In  criminal  cases,  or  at  least  in  capital  ones, 
there  is,  in  favorem  vitoe,  allowed  to  the  prisoner  an  arbi- 
trary and  capricious  species  of  challenge  to  a  certain 
number  of  jurors,  without  showing  any  cause  at  all,  which 
is  called  a  peremptory  challenge."  *  From  the  foregoing 
it  is  evident  that  a  doubt  possessed  the  mind  of  the  great 
jurist,  whether  the  right  of  peremptory  challenge  could 
be  considered  as  pertaining  to  any  felony  not  capital. 
Other  authorities  state  this  right  of  challeno:e  to  be  an  in- 
cident  of  felony  generally,  without  any  mention  that  it  is 
in  favorem  vitm.'° 

In  Heg.  v.  Geach/'  which  Avas  a  trial  for  a  felony  not 
capital,  the  accused  was  permitted  to  challenge  twenty 
jurors  peremptorily.  The  authority  of  this  case,  how- 
ever, is  not  to  be  relied  upon,  since  Baron  Parke,  before 
whom  the  trial  was  had,  subsequently  solemnly  stated  that 
the  point  was  neither  taken  by  counsel  nor  considered  by 
him,  but  the  matter  passed  as  one  of  ordinary  course.' 


MPh.  &M.,c.  10,  §  7. 

2  Co.  Litt.  156.  b.;  2  Hawk.  P.  C.  570,  B.  2,  c.  43,  §  5;  2  Hale  P.  C. 
267;  1  Chit.  Cr.  L.  535;  Trials  per  Pais  (1725)  455;  Bac.  Abr.  Juries 
E.  2 ;  Ibid.,  9 ;  Doctor  &  Student,  29.  See  comments  upon  the  foregoinj^ 
bj'  Lord  Chief  Baron  Pollock  in  Keg.  v.  Gray,  11  CI.  &  Fin.  427,  479. 

3  Reading's  Case,  7  How.  St.  Tr.  201. 
<  4  Bl.  Com.  353. 

5  Com.  Dig.  Challenge,  c.  1;  Ibid.,  Indictment  M;  Ibid.,  Justices  W.  2;. 
Finch  Law,  Bk.  4,  c.  36,  p.  414. 

6  9  Car.  &  P.  499. 

7  See  Graj^  v.  Reg.,  11  CI.  &  Fin.  427,  471. 


138  PEKEMITOHY  CHALLENGES.  [CH.  X. 

Such  \v:is  the  .sttite  of  authority  at  the  time  of  the  trial 
of  the  great  case  of  Reg.  v.  Gray,^  m  1843.  Here  the 
matter  was  first  thoroughly  investigated,  and  it  proved 
to  be  a  qiKcstio  vexata  indeed.  This  case  was  an  indict- 
ment for  shooting  with  intent  to  kill.  The  offense  was 
not  a  felony  at  common  law,  but  was  declared  a  felony 
by  statute.  By  previous  statutes,  at  this  time  repealed, 
the  offense  had  been  capital  ;  but  by  a  subsequent  statute,^ 
the  punishment  was  fixed  at  transportation  or  imprison- 
ment. Here,  then,  was  a  felony  of  a  serious  nature,  but 
not  capital,  and  the  question  was  whether  the  right  of 
peremptory  challenge  was  an  incident  of  the  offense.  On 
the  trial  at  the  assizes  the  right  was  denied,  and  this  ruling 
was  afiirmed  by  the  Irish  Court  of  Queen's  Bench.^  It 
was  here  shown  that  there  was  a  conflict  in  the  practice 
of  the  English  and  Irish  courts.  The  practice  in  England 
had  uniformly  been  to  allow  the  challenge.'*  However,  no 
<;ase  could  Ije  found  in  the  English  reports  where  the  point 
had  been  raised  and  decided.  Jn  the  Irish  })ractice,  on 
the  contrary,  the  matter  had  on  several  occasions  come 
under  the  observation  of  the  judges,  and  the  majority  of 
the  court  in  this  case  were  able  to  refer  to  reported  cases 
and  manuscript  opinions  showing  that  the  right  claimed 
had  been  repeatedly  denied.* 

'  6  Irish  C.  L.  259;  .v.  c,  reversed  in  IToii«e  of  Lords.  11  CI.  &  Fin. 
427;  also  reported  in  6  Irish  C.  L.  482. 

2  1  Vic,  c.  85,  §  21. 

3  6  Irish  C.  L.  259.     Terrin  J.,  dissenting. 

■•  When  this  case  was  before  the  House  of  Lords,  Mr.  Baron  Gurney 
*;aid :  "During  the  whole  of  a  long  professional  life  I  liave  witnessed 
the  constant  exercise  of  the  right  of  challenge  in  all  felonies,  and  no 
distinction  ever  made  as  to  whetlier  they  were  clergyable  or  not  clergy- 
able, whether  felonies  at  common  law  or  felonies  created  by  statute. 
If  there  was  any  legal  proposition  which  was  considered  as  undoubted 
bv  every  professional  man  practicing  in  courts  of  criminal  justice,  it 
was  that  every  person  accused  of  felony  had  the  right  of  peremptory 
<hallenge  to  the  number  of  twenty."'     11  CI.  &  Fin.  459. 

*  Rex  V.  Phelan,  and  Rex  v.  Whelan,  1  Craw.  &  Dix  C.  C.  189,  and  note; 
Rex  v.  Adams,  Jebb  C.  C.  135.  and  other  unreported  cases  cited  in 
*>  Irish  C.  L.  281,  288.  An  odd  reason  was  assigned  by  Crampton,  J.,  as 
|)0BSibly  accounting  for  the  contrary  practice  in  England.    That  prac- 


§    156,]      RIGHT  NOT  RKSTEICTED  TO  CAPITAL  OASES  139 

An  insuperable  obstacle  stands  against  the  contention 
that  this  challenge  Avas  allowed  only  in  favor  em  vitoe.  This 
difficulty  is  its  recognized  existence  upon  an  indictment  for 
misprision  of  treason,  which  certainly  was  not  punished 
capitally,  being  a  misdemeanor  only.^  But  this  is  not  the 
only  exception  to  the  rule  under  discussion.  This  right  of 
challeno-e  was  admissible  in  those  felonies  even  to  which  the 
benefit  of  clergy  was  an  incident.^  If  the  challenge  was 
allowed  only  in  favorem  vitce,  here,  certainly,  was  a  proper 
case  for  the  application  of  the  maxim,  cessante  ratione  legis, 
cessat  et  ipsa  lex.  But  this  was  not  done.  On  the  con- 
trary, no  case  of  clergyable  felony  is  known  where  the 
right  of  peremptory  challenge  was  ever  doubted  ; ''  although 
there  is  no  recorded  case  of  a  person  being  executed  for 
a  clergyable  felon3^^ 

It  is  also  to  be  noticed  that  peremptory  challenges  were 

tice  be  considered  to  be  the  result  of  iudulgence  and  coneessiou,  gi-ow- 
ing  out  of  that  spirit  of  candor  and  fair  dealing,  and  tenderness  for  per- 
sons unde'"going  the  ordeal  of  public  trial,  which  he  considered 
eminently  characterized  the  conduct  of  criminal  trials  in  England.  (See 
the  same  unmerited  eulogy  in  i  Bl.  Com.  353.)  In  Ireland,  he  thought, 
"  there  may  be,  on  both  sides,  more  of  the  spirit  of  combat,  and  more  of 
the  desire  for  victory  in  the  forensic  contests,  and  perhaps  on  that  ac- 
coimt  the  rights  both  of  the  prosecutor  and  the  prisoner  may  have  been 
more  jealously  and  rigidly  asserted  in  Ireland  than  in  England." 
6  Irish  C.  L.  283.  Mr.  Justice  Williams,  in  his  opinion  in  this  case  be- 
fore the  House  of  Lords,  strongly  expressed  himself  to  the  contrary. 
"  To  attribute  this  prevalence  to  connivance  or  concession,"  said  he,  "  or 
to  anything  but  right,  seems  to  me  a  solution  of  a  very  unsatisfactory 
description.  Why  should  an  unauthorized  indulgence,  not  founded  upon 
any  warrant  or  principle  of  law,  have  been  conceded,  if  it  could  have 
been  resisted,  in  this  case  in  particular  above  all  othei's?  I  should 
rather  think  it  probable  that,  as  a  peremptory  challenge  may  be  for 
any  reason  wholly  imknown,  and  therefore  to  a  certain  extent  of  a 
personal  and  offensive  nature,  it  would  have  been  resisted,  if  resistance 
had  been  considered  practicable."     11  CI.  &  Fin.  4.54. 

1  4  Bl.  Com.  120;  3  Co.  Inst.  27,  36. 

2  See  for  example  in  this  country,  United  States  v.  Lambert.  2  Cranch 
C.  C.  137;  United  States  v.  Craig,  2  Cranch  C.  C.  36;  State  v.  Cadwell, 
1  Jones  L.  289;  State  v.  Humphreys,  1  Overton,  306. 

s  Per  Perrin,  J.,  6  Ir.  C.  L.  272. 

<  Patteson,  J.,  in  11  CI.  &  Fin.  464;  Tindal,  L.  C.  J.,  Ibid.,  p.  485; 
Perrin,  J.,  6  Ir.  C.  L.  272. 


140  rEREMrroRY  challenges.  [cii  x. 

not  allowed  upon  the  trial  of  collateral  issues,^  and  yet  life 
might  be  in  jeopardy  upon  the  trial  of  such  an  issue,  as  is 
shown  b}'^  several  reported  cases. ^ 

Although,  generally  speaking,  felonies  at  common  Uiw 
were  capital,  yet,  in  true  legal  theory  and  in  strict  con- 
struction of  the  law,  all  felonies  were  not  capital.^  "  Prop- 
erly," says  Bhiekstone,  "  it  is  a  crime  to  be  punished  by 
forfeiture,  and  to  which  death  may  or  may  not  be,  though 
it  generally  is,  superadded."^  Such  being  the  fact,  an 
inspection  of  the  English  statutes  regarding  the  right  of 
peremptory  challenge  will  show  that,  while  the  origin  of 
the  privilege  in  felony  may  have  been  that  capital  punish- 
ment was  usually  an  incident  of  that  grade  of  crime,  never- 
theless, the  law,  without  distinction,  annexed  this  privilege  of 
challenge  to  the  crime,  and  recognized  it  as  an  incident  to 
felony  generally.^  The  expression,  therefore,  in  favorem 
vitce  tends  rather  to  show  the  origin  of  the  rule,  than  to 
govern  the  application  of  it  at  common  law/' 

It  will  be  seen  that  while  benefit  of  clergy  lasted,  the 
question  could  hardly  arise  as  to  whether  the  right  of 
peremptory  challenge  was  incidental  to  felonies  of  a  trivial 
character,  because,  in  general,  felonies  of  all  degrees  of 
heinousness  were  punished  capitally,  the  rigor  of  the  law 
being  abated  bv  the  allowance  of  the  benefit  of  clergy. 
With  the  abolition  of  the  benefit  of  clergy,  however,^  came 
a  reform  in  the  punishment  prescribed  by  law  for  felonies 
which,  by  the  exercise  of  this  fiction,  had  not  been  capital. 

1  2  Hale  P.  C.  267. 

2Ratcliffe's  Case,  1  Win.  Bl.:3;  n.  c,  Foster  Cr.  L.  40;  IS  IIow.  St. 
Tr.  429;  Rex  v.  Okey,  1  Levinz,  61.    Fost,  §  IGO. 

3  Crampton,  J.,  in  6  Irish  C.  L.  278;  4  Bl.  Comm.  97. 

*  4  Bl.  Comm.  98. 

6  22  Hen.  VIH.,  c.  14,  §  6;  32  Hen.  VHI.,  c.  3,  §  3;  33  Hen.  VH[., 
c.  23.  §  3;  6  Geo.  IV.,  c.  50,  §  29;  7  &  8  Geo.  IV.,  c.  28,  §  3;  9  Geo.  IV., 
e.  54,  §  9.  Xote  the  language  of  the  judges  in  Gray  v.  Reg.,  11  CI. 
it  Fin.,  at  pp.  449,  4.53,  4.->S.  479;  Foster  Cr.  L.  305. 

fi  Note  the  language  of  Mr.  Justice  AVilliams  in  Gray  v.  Reg.,  11 
CI.  &  Fin.  457,  and  that  of  Lord  Chief  Baron  Pollock,  Ibid  ,  479. 

"Abolished  in  England  by  7  and  8  Geo.  IV.,  c.  28,  §  G;  in  Ireland, 
by  9  Geo.  IV.,  c.  .54,  §12. 


§    156.]    EIGHT  NOT  RESTRICTED  TO  CAPITAL  CASES.  141 

The  punishment  of  felonies  which  had  been  clergyable 
was,  after  the  abolition  of  the  fiction,  made  in  many  cases 
much  heavier  than  before.  Thus,  while  the  fiction  lasted, 
the  extreme  punishment  for  a  clergyable  felony  was  burn- 
ing in  the  hand,  and  imprisonment  not  exceeding  twelve 
months.^ 

The  case  of  lieg.  v.  Gray^^  shows  a  felony  which 
formerly  had  been  clergyable,  but  after  the  abolition  of  the 
benefit  was  punished  in  the  extreme  by  transportation  for 
life.  In  that  case  the  great  question  for  discussion  was 
whether,  the  fictitious  death  penalty  and  the  benefit  of 
clergy  being  abolished,  the  right  of  peremptory  challenge 
was  taken  away  by  implication.  By  implication  it  must 
have  been  taken  away,  if  at  all ;  because  the  statutes,  which 
abolished  the  benefit  of  clergy,  re-enacted  that  the  right  of 
peremptory  challenge  should  continue  in  treason  and  felony. 
"It  is  a  principle  of  law,"  said  Mr.  Justice  Perrin,  when 
this  case  was  before  the  Irish  Court  of  Queen's  Bench, 
"  that  no  incident  can  be  taken  away  except  by  express 
words."  ^  Stating  the  language  of  Lord  Coke,  which 
clearly  shows  the  right  of  peremptory  challenge  to  be  such 
an  incident,*  he  said:  "On  what  principle  can  it  be  in- 
ferred that  the  wise  precaution,  the  just  privilege  intended 
for  the  just  object  of  just  trial,  is  withdrawn?  I  should 
require  cogent  and  stringent  authority  to  bring  me  to  that 
conclusion,  and  to  take  away  that  incident  to  felony,  which 
according  to  the  authorities  can  only  be  taken  away  by  the 
express    words  of  an  act  of  Parliament."^     Of  the  same 

1  Per  Perrin  J.,  Reg.  v.  Gray,  G  Irish  C.  L.  273. 

^  6  Irish  C.  L.  259,  482;  s.  c,  11  CI.  &  F.  427. 

3  6  Irish  C.  L.  273.    See  also  The  Coalheaver's  Case,  1  Leach  Cr.  L.  76. 

*  "  The  end  of  challenge  is  to  have  an  indifferent  tryall,  and  which  is  re- 
quired by  law;  and  to  bar  the  party  indicted  of  his  lawfuU challenge,  is 
to  bar  him  of  a  piincipall  matter  concerning  his  tryall."    3  Co.  Inst.  27. 

*  6  Irish  C.  L.  273.  See  also  Barrett  v.  Long,  3  H.  L.  Cas.  395;  Hooper 
V.  State,  5  Yerg.  422,  426;  State  v.  Humphreys,  1  Overton,  306;  United 
States  v.  Johns,  4  Dall.  412;  s.  c,  1  Wash.  C.  C.  363;  United  States  v. 
Shackleford,  18  How.  588;  United  States  v.  Browning,  1  Cranch 
C.  C.  330;  United  States  v.  McLaughlin,  1  Cranch  C.  C.  444;  United 
States  v.  Peter.  2  Cranch  C.  C.  98;  United  States  v.  Gee,  2   Cranch 


142  rEREMlTOKV  CHALLENGES.  [CH.  X. 

opinion  wciv  tlic  judges  generally  and  the  Ilonse  of  Lords 
when  this  case  came  before  them  npon  a  writ  of  error. ^  It 
was  here  dcHnitcly  settled  as  a  i)rinciple  of  law,  ai)plicable 
to  Enirland  and  Ireland  alike,  that  at  common  law  the  right 
of  a  defendant  to  a  peremptory  challenge  of  jurors,  to  the 
statutory  number  existed,  in  all  cases  of  felony,  and  was 
not  contined  to  those  piuiished  capitally. 

We  have  considered  this  matter  thus  at  length,  because 
the  opinion  has  generally  prevailed  in  this  country  that 
peremptory  challenges  were  allowable  at  common  law  in 
capital  cases  only.-' 

§  157.  Clialleuj»iHj;  more  than  allowed  by  Law. —  At 
common  law,  if  a  person  on  trial  challenged  jurors  peremp- 
torily in  excess  of  the  number  allowed  by  law  in  a  case  of 
treason,  he  was  regarded  as  saying  nothing,  and  judgment 
of  death  was  pronounced;  but  in  felony  or  petit  treason, 
the  prisoner  was  put  to  the  iavYxhXQ  peine  forte  et  dure,  i.  e. 
pressing  to    death. ^     At    the   present   time,    however,    no 


C.  C.  16.3;  United  States  v.  Wood,  2  Cranch  C.  C.  164;  United  States  v 
Summers,  4  Crandi  C.  C.  :{34;  United  States  v.  Dow,  Taney  Dec.  34; 
State  V.  Buckner.  25  Mo.  167,  170.  Neither,  it  is  held,  is  the  converse 
of  this  principle  true,  namely,  that  the  right  of  challenging  jurors  per- 
•mptorily  will  attach  to  an  offense  made  a  felony  ])y  statute.  United 
States  V.  Shive,  Bald.  C.  C.  510;  Shuster  v.  Com.,  38  Pa.  St.  206;  Com. 
V.  Hand,  3  Phila.  403.     But,  contra,  see  Reg.  v.  Gray,  supra. 

^  Upon  this  occasion  the  question  arising  upon  the  challenge  was  for- 
mulated into  a  stated  case,  and  the  opinions  of  the  judges  were  re- 
quested. Opinions  were  delivered  in  favor  of  the  right  by  Justices 
Wightman,  Coltman,  Williams,  Pattcson,  Baron  Gurney,  Lord  Chief 
Baron  Pollock  and  Lord  Chief  Justice  Tindal,  Baron  Parke  dissenting  at 
length.  The  opiuious  of  the  majority  of  the  judges  were  adopted  by 
the  lords,  the  Lord  Chancellor  (Lyndhurst),  Lords  Brougham  and 
Campbell  expressing  the  judgment  of  the  House. 

»  See  United  States  v.  Hand.  3  Phila.  403;  United  States  v.  Cotting- 
ham,  2  Blatch.  470;  United  States  v.  Carrigo,  1  Cranch  C.  C.  49; 
United  States  v.  McPherson,  1  Cranch  C.  C.  517;  United  States  v. 
Toms,  1  Cranch  C.  C.  607;  United  States  v.  Smithers,  2  Cranch  C.  C. 
38;  United  States  v.  Johns,  4  Dall.  412;  United  States  v.  Black,  2 
Cranch  C.  C.  195;  United  States  v.  Krouse,  2  Cranch  C.  C.  252;  United 
States  v.  White,  5  Cranch  C.  C.  73;  United  States  v.  Randall,  1  Deady, 
524;  Shuster  v.  Com.,  38  Pa.  St.  206. 

3  2  Hale  P.  C.  268.     Sir  J.  Kelyng  notes  a  case  in  which  the  person  so 


§   158.]  RIGHT  TO  STAND  JURORS  ASIDE.  143 

importance  whatever  is  attached  to  this  act  of  the  chal- 
lenging party.  By  statutes  in  Enghmd  and  this  country^ 
if  an  attempt  is  made  to  exceed  the  legal  limit,  such  chal- 
lenges are  simply  disregarded,  and  the  trial  proceeds  with- 
out interruption.  It  is  a  remarkable  circumstance  that 
such  conduct  on  the  part  of  an  accused  person  was  ever 
regarded  as  of  any  note  whatever.  The  right  of  the 
court  to  direct  the  trial  to  proceed  in  disregard  of  such 
challenffingr  would  seem  to  have  been  clear. ^ 

§  158.  The  Right  of  the  Prosecution  to  stand  Jurors 
aside.  —  ( 1 . )  History  and  Practice  in  England  and  Can- 
ada.—  Previous  to  the  statute  33  Edw.  I.  Stat  4,  the 
♦'Ordinance  for  Inquests,"  the  crown  might  peremptorily 
challenge  jurors  without  limit. ^  In  this  way  the  crown 
could,  in  an  arbitrary  manner,  on  every  criminal  trial, 
challenge  so  many  of  the  jurors  returned  on  the  panel  by 
the  sheriff  that  twelve  did  not  remain  to  make  a  jury ; 
and  the  trial  might  be  indefinitely  postponed,  pro  defeciu 
juratorum} 

This  statute,  however,  narrowed  the  challenges  of  the 
crown  down  to  those  for  cause  shown.*  It  was  held  to 
apply  to  all  cases,  civil  and  criminal,  and  thus  the  de- 
fendant, from  occupying  a  position  decidedly  at  a  disad- 
vantage as  compared  with  the  crown,  would  seem  to  have 
become  suddenly  possessed  of  an  equally  unfair  advantage 
over   the    crown   itself.     But    the    courts    and    the    crown 

challengfino;  was  mercifully  hanged  instead  of  being  pressed  to  death, 
Kel.  p.  36.  Later,  the  punishment  of  hanging  was  not  enforced.  The 
challenge  was  simply  overruled,  and  the  prisoner  put  upon  his  trial. 
Trials  per  Pais  (1725)  456. 

1  State  V.  Gainer,  2  Hayw.  (N.  C.)  140;  Funk  v.  Ely,  45  Pa.  St.  444. 

2 1  Chitty  Cr.  L.  533. 

3  This  has  been  attempted  even  under  the  statute.  See  Reg.  v. 
McMahon,  Irish  Rep.  9  C.  L.  309.  See  also  Cowper's  Case,  13  How.  St. 
Tr.  1108. 

*  The  following  is  the  text  of  the  statute :  "  Of  inquests  to  be  taken 
before  any  of  the  justices,  and  wherein  our  lord  the  King  is  party, 
howsoever  it  be,  it  is  agreed  and  ordained  by  the  King  and  all  his  coun- 
cil, that  from  henceforth,  notwithstanding  it  be  alleged,  by  them  that 
sue  for  the  King,  that  the  jurors  of  those  inquests,  or  some  of  them,  be 


144  rEREMPTORY  CHALLENGES.  [CH.  X. 

lawyers  evidently  would  not  liiivo  it  so,  and  ticcordingly 
the  effect  of  this  statute  was  early  mitigated  ])y  a  rule  of 
practice  not  to  compel  the  crown  to  show  cause  against 
the  juror  at  the  time  of  challenge.  The  juror  might  be 
directed  to  stand  aside  until  the  whole  panel  had  been  gone 
over  in  this  manner.^  The  defendant  having  completed 
his  challenging,  if  a  jury  could  l)e  procured  from  what  un- 
objectionable persons  remained  upon  the  panel,  these  were 
selected.  But  in  case  of  a  deficiency,  the  crown  was  then 
called  upon  to  sho^vv  cause  in  respect  to  those  members 
of  the  panel  who  had  been  directed  to  stand  aside .^  This 
right  of  ordering  jurors  to  stand  aside  might,  in  cases  of 
misdemeanor,  be    exercised  by  a  private  prosecutor  equally 

not  indifferent  for  tlie  King,  yet  such  inquests  sliall  not  remain  untaken 
for  that  cause ;  but  if  they  that  sue  for  the  King  will  challenge  any  of  those 
jurors,  they  shall  assign  of  their  challenge  a  cause  certain,  and  the 
truth  of  the  same  challenge  shall  be  inquired  of  according  to  the  cus- 
tom of  the  court."  This  statute  was  re-enacted  in  6  Geo.  IV.,  c.  50, 
§  29.  See  Keg.  v.  Frost,  9  Car.  &  P.  129,  137.  It  was  ruled  in  a  nisi 
prius  case  shortly  after  the  passage  of  this  last  act,  that  the  crown 
must  show  cause  upon  making  the  challenge.  See  Sawdon's  Case, 
2  Lewin  C.  C.  117.  Such,  however,  is  not  the  law.  The  later  stat- 
ute made  no  change  in  the  rule,  Mansell  v.  Reg.,  8  El.  &  Bl.  54; 
Rex  V.  Parry,  8  Car.  &  P.  836. 

J  "There  was,"  said  Lord  Campbell,  C.  J.,  "no  intention  of  taking 
away  all  power  of  peremptory  challenge  from  the  crown,  while  that 
power,  to  the  number  of  thirty-five,  was  left  to  the  prisoner.  Indeed, 
unless  this  power  were  given  under  certain  restrictions  to  both  sides,  it 
is  quite  obvious  that  justice  could  not  be  administered;  for  it  must  often 
happen  that  a  juror  is  returned  on  the  panel  who  does  not  stand  indif- 
ferent, and  who  is  not  fit  to  serve  upon  the  trial,  althougli  no  legal 
evidence  could  be  adduced  to  prove  his  unfitness."    Mansell  v.  Reg., 

8  El.  &  Bl.  54.  71. 

2  Staunford  P.  C.  1G2,  b. ;  2  Hawk.  P.  C,  ch.  43,  §  3;  2  Hale  P.  C. 
271;  1  Chitty  Cr,  L.  5.34;  Bac.  Abr.  Juries  E.  10;  4  Bl.  Com.  353; 
Fitzharris'  Case,  8  How.  St.  Tr.  43G;  Count  Conigsmark's  Case,  9  How. 
St.  Tr.  12;   Staplcton's  Case,  8  How.  St.  Tr.  503',   Lord  Grey's  Case, 

9  How.  St.  Tr.  128;  s.  c.  Skin.  82;  Cook's  Case,  13  How.  St.  Tr. 
318;  Cowper's  Case,  13  How.  St.  Tr.  1108;  Layer's  Case,  16  How. 
St.  Tr.  135;  Brandreth's  Case,  32  How.  St.  Tr.  755,  772;  Reg.  v. 
Geach.  9  Car.  &  P.  499;  Kog.  v.  Frost,  9  Car.  &  P.  129;  Mansell  v.  Reg. 
SEl.  &B1.  54;  Reg.  v.Dougall,  18  Low.  Can.  Jur.  85.  The  panel  having 
been  gone  over  and  a  jury  not  procured,  the  proper  practice  was  to  call 
over  the  whole  of  the  panel  in  the  same  order  as  before,  omitting  those 


§    158.]  RIGHT  TO  STAND  JURORS  ASIDE.  145 

with  the  crown. ^  When  it  is  considered  that  the  court 
might  in  its  discretion  direct  the  sheriff  to  return  any 
number  of  jurors  for  the  trial  of  a  particuhir  case,^  and 
that  not  infrequently  it  openly  took  sides  against  the  ac- 
cused, it  will  be  seen  that  under  this  practice  the  crown 
still  possessed  no  mean  advantage. 

So  settled  had  this  practice  become  that  in  1699,  upon 
one  occasion,  after  the  panel  had  been  gone  over  without 
procuring  a  juror,  when  the  prisoner  demanded  that  the 
crown  now  show  causes  for  the  challenges  which  had  been 
made,  the  counsel  of  the  King  boldly  said :  "I  conceive 
we,  that  are  retained  for  the  King,  are  not  bound  to  show 
any  cause,  or  the  cause  is  sufficient  if  we  say  they  are  not 
good  for  the  King,  and  that  is  allowed  to  be  a  good  cause 
of  challenge ;  for  what  other  cause  can  we  show  in  this 
case?  You  are  not  to  show  your  cause,  you  challenge  per- 
emptorily ;  so  in  this  case  the  King  does."  ^  It  will  be  seen 
that  in  making  this  claim  the  crown  lawyer  considered  that 
the  government's  right  of  challenge  was  entirely  unaffected 
by  the  statute  under  discussion  ;  for,  previous  to  the  stat- 
ute, it  was  a  sufficient  ground  of  challenge  to  jurors  "  quia 
non  sunt  boni  pro  rege." '^  "  I  do  not  know,"  he  contin- 
ued, "  in  all  my  practice  of  this  nature,  that  it  was  ever 
put  upon  the  King  to  show  cause,  and  I  believe  some  of  the 
King's  counsel  will  say  they  have  not  known  it  done." 
This  claim,  however,  was  not  supported  by  the  court. 

On  the  contrary,  it  appears  that  the  crown  could  not  in- 
sist upon  this  practice  as  matter  of  right.     This  point  was 

who  had  previonsl}'  been  challenojecl  by  the  prisoner,  and,  as  each  juror 
appeared,  for  the  projecuting  counsel  to  state  the  crown's  cause  of  chal- 
lenge.    If  tliis  challenge  was  not  allowed,  and  tiie  juror  remained  unchal- 
lenged by  the  accused,  he  was  sworn.     Reg.  v.  Geach,  9  Car.  &  P.  499. 
The  panel  might  be  gone  over  a  second  time,  and  the  same  jurors  stood 
aside  a  second  time,  if  certain  members  of  the  panel,  absent  when  their 
names  were  first    called,   returned  in  season   for  the   second   calling. 
Coolv's  Case,  13  How.  St.  Tr.  311,  317;   Mansell  v.  Reg..  8  El.  &  Bl.  51. 
1  Reg.  V.  McGowen,  cited  in  Reg.  v.  McCartie,  11  Ir.  C.  Ij.  (N.  S.)  188. 
^Ante  §  79. 
Cowper's  Case,  13  How.  St.  Tr.  1108. 
1  Chitty  Cr.  L.  533. 

(10) 


146  PEREMPTORY  CHALLENGES.  [CH.  X. 

noticed  by  Lord  Chief  Justice  Eyre  in  the  trial  of  Home 
Tooke  for  high  treason  in  1794.^  After  stilting  the  practice, 
he  said  :  "At  the  same  time  I  feel  that  the  circumstance, 
which  is  become  absolutely  necessary,  of  making  the  panels 
"vastly  more  numerous  than  they  were  in  ancient  times, 
might  give  to  the  crown  an  improper  advantage,  arising  out 
of  that  rule  ;  and  whenever  we  shall  see  that  improper  ad- 
vantage attempted  to  be  taken,  it  will  be  for  the  serious 
consideration  of  the  court,  whether  they  will  not  put  it  into 
some  course  to  prevent  that  advantage  being  taken."  ^ 

Taking  advantage  of  this  expression  of  opinion,  Mr. 
Scott,  of  counsel  for  one  of  the  defendants  in  the  trial  of 
O'Coigly  and  others  in  1798,  bitterly  "and  ably  inveighed 
against  the  legality  of  the  practice  itself.  Eleven  of  the 
panel  had  been  thus  set  aside  by  the  crown,  when,  burning 
with  indignation,  he  exclaimed  :  "I  must  be  chained  down 
to  the  ground,  my  lords,  before  I  can  sit  here,  engaged  as 
I  am  for  the  life  of  one  of  the  gentlemen  at  the  bar,  and 
submit  to  these  challenges  of  the  crown  without  cause."* 
Citing  the  expression  of  Lord  Chief  Justice  Eyre  in 
Tooke'' s  Case,  he  arraigned  the  practice  as  agamst  reason, 
authority  and  policy,  charging  it  to  be  the  most  monstrous 
violation  of  law  and  justice  that  could  be  attempted.  Com- 
menting upon  each  of  the  reported  cases  in  Avhich  the  prac- 
tice had  been  permitted,  in  heated  language  he  denounced 
the  authority  of  each  and  all  of  them  to  establish  a  practice 
to  subvert  an  act  of  Parliament.  But  the  judges  were  im- 
passive. Mr.  Justice  Buller  said:  "I  have  no  difficulty 
in  saying,  that  I  am  most  clearly  of  opinion  the  law  is  as 
firmly  and  as  fully  settled  on  this  point,  as  anyone  question 
that  can  arise  on  the  law  of  England.  I  will  go  farther, 
and  say,  that  every  case  which  has  been  quoted  against  the 
conduct  of  the  attorney-general  in  this  instance,  is  a  direct 
proof  in  favor  of  the  power  which  he  has  exercised.     I  will 

1  25  How.  St.  Tr.  1,  25. 

2  Ibid.,  p.  25.    But  see  Erandreth's  Case,  32  How.  St.  Tr.  755,  772. 

3  O'Coigly -s  Case,  26  How  St.  Tr.  1191,  1231. 


•§   158.]  RIGHT  TO  STAND  JURORS  ASIDE.  147 

also  add  that  the  statute  itself  is  not  against  it."  ^  The 
other  judges,  Heath  and  Lawrence,  delivered  opinions  in 
favor  of  the  practice.  Since  this  time  the  validity  of  tho 
practice  seems  occasionally  to  have  been  questioned,  but 
never  with  success.-  The  practice  continues  in  England, 
and  but  slightly  affected  hy  statute.^ 

(2.)  Practice  in  the  United  States. —  In  this  country  it 
is  an  established  principle  that,  after  the  independence  of 
the  colonies  was  declared,  the  respective  States  and  the 
people  succeeded  to  the  rights  and  prerogatives  of  the 
crown,  and  the  law  continued  the  same  as  before,  unless 
altered  by  the  constitution  or  laws  of  the  particular  State. 
Accordingly  the  statute  under  discussion,  being  a  part  of 
the  common  law,  was  early  held  to  be  applicable  to  those 
jurisdictions  in  which  the  government  had  no  peremptory 
challenges  guaranteed  by  law.^  This  statute,  as  a  part  of 
the  common  law  of  this  country,  was  brought  into  jjrom- 
inent  notice  by  Mr.  Justice  Story  in  United  States  v.  Mar^ 
chant,^  and  afterwards  received  general  recognition.^ 

1  Ibid.,  p.  1240. 

2  "The  rule,"  said  Lord  Campbell,  C.  J.,  "  (with  a  view  probably  of 
conveying  to  the  bystanders  the  notion  that  it  operates  harshly  against 
the  prisoner)  has  often  been  questioned ;  but  it  has  as  often  been  recog- 
nized and  established  by  the  presiding  judges.  The  last  instance  of 
this  was  on  the  trial  of  John  Frost  for  high  treason  in  the  year  1840.' 
Mansell  v.  Keg.,  8  El.  &  Bl.  54,  72;  s.  c,  Dears.  &  B.  375.  The  same 
objection  was  again  made  without  success  in  the  same  case,  which  was 
tried  in  1856.  See  also  Reg.  v.  Benjamin,  4  Up.  Can.  C.  P.  179;  Reg.  v. 
Fellowes,  19  Up.  Can.  Q.  B.  48. 

3  By  37  Vict.,  ch.  38,  §  11,  applicable  to  Canada,  "The  right  of  the 
crown  to  cause  any  juror  to  stand  aside  until  the  panel  has  been  gone 
through,  shall  not  be  exercised  on  the  trial  of  any  indictment  or  infor- 
mation by  a  private  prosecutor  for  the  publication  of  a  defamatory 
libel."  Under  this  statute,  the  fact  of  the  prosecution  beiug  conducted 
by  a  counsel  appointed  by  and  representing  the  attorney-general  was 
held  to  make  no  difference.     Regiua  v.  Pattesou,  36  Up.  Can.  Q.  B.  129. 

*  Com.  V.  Addis,  1  Bro.  (Pewn.)  285,  and  cases  cited  in  note;  State  v. 
Barrontine,  2  Nott  &  McC.  553. 

6 12  Wheat.  480. 

^  United  States  v.  Wilson,  Bald.  C.  C.  78,  82 ;  Com.  v.  Marrow,  3  Brewst. 
402;  s.  c,  sub  nom.  Com.  v.  Marra,  8  Phila.  440;  Jewell  v.  Com.,  22  Pa. 
St.  94;  Com.  v.  Jolliffe,  7  Watts,  585;  State  v.  Arthur,  2  Dev.  217;  State 


148  PEREMPTORY  CHALLENGES.  [CH.  X. 

The  right  to  stand  jurors  aside  has  l)ccii  j)rcserved  to  the 
State  even  after  the  passage  of  statutes  granting  to  the 
prosecution  a  certain  number  of  peremptory  challenges.^ 
But  this  view  of  the  law  is  fairly  open  to  criticism.  The 
inordinate  advantage  enjoyed  by  the  prosecution  under  the 
established  interpretation  of  33  Edw.  I.,  Stat.  4,  has  been 
the  subject  of  frequent  observation  from  the  bench,  and 
vehement  protestation  by  the  counsel  for  accused  persons. 
It  would  seem  that  the  rule  ought  to  cease  with  the  reason 
for  it.  The  practice  grew  out  of  the  lack  of  perem[)tory 
challenges  on  the  part  of  the  prosecution  after  the  passage 
of  the  statute;  but  where  such  challenges  are  allowed,  the 
practice  cannot  be  supported.^  It  is,  however,  worthy  of 
consideration  whether  the  right  ought  not  to  exist  where 
the  number  of  peremptory  challenges  allowed  to  the  State 
is  very  small  in  comparison  with  the  number  allowed  to  the 
accused. 

§  159.  The  Right  of  Challenge  not  a  Right  to  select. — 
It  is  a  settled  maxim  of  the  law  that  the  right  of  peremp- 
tory challenge  is  not  a  right  to  select,  but  a  right  to  reject 
jurors.^  The  right  to  say  who  shall  not  try  the  case  is  all 
that  the  privilege  of  challenging  confers.     In  the  language 

V.  Craton,  G  lied.  L.  164;  State  v.  Benton,  2  Dev.  &  Bat.  196;  State  v. 
Stalniaker,  2  Brevard,  1;  Sealy  v.  State,  1  Ga.  213;  United  Slates  v. 
Douglass,  2  Blatch.  207;  Com.  v.  Twitehell,  1  Brewst.  651;  Waterford, 
eti'.,  Tp.  V.  People,  9  Barb.  161;  People  v.  Aichinson,  7  How.  Pr.  241; 
People  V.  Henries,  1  Park.  Cr.  R.  579;  State  v.  Siiaw,  '6  Ired.  L.  532; 
State  V.  Bone,  7  Jones,  L.  121.  But  see  Montague  v.  Com.,  10  Gratt. 
767;  United  States  v.  Shackleford.  18  How.  588. 

1  Warren  v.  Com.,  37  Pa.  St.  45;  State  v.  MoNinch.  12  So.  Car.  89; 
State  V.  Benton,  2  Dev.  &  B.  jfO;  Slate  v.  Stei)hens,  13  So.  Car.  285. 

2  Sealy  v.  State,  1  Ga.  213;  Reynolds  v.  State,  1  Ga.  222;  United 
States  V.  Butler,  1  Hughes,  457.  The  latter  case  was  tried  before  Chief 
Justice  Waite  in  the  United  States  Circuit  Court  for  the  District  of  South 
Carolina.  April,  1877. 

s  United  States  v.  Marchant,  4  Mason,  1,58;  s.  c,  12  Wlieat.  480;  State 
V.  Wise,  7  Rich.  L.  412;  Slate  v.  Cazeau,  8  La.  An.  10!);  State  v.  Car- 
doza,  11  So.  Car.  195,249;  Maton  v.  People,  15  111.  536,539;  Cruce  v. 
State.  59  Ga.  83,  90;  State  v.  Smilli,  2  Ired.  L.  402;  State  v.  Arthur, 
2  Dev.  217;  Turpin  v.  Slate  (Sup.  Ct.  Md.,  Oct.  1880),  2  Criui.  L. 
Mag.  532. 


§160.]  CONFINED  TO  TRIAL  OF  MAIN  ISSUE.  149 

of  the  distinguished  jurist  to  whom  the  law  is  indebted  for 
the  first  lucid  statement  of  this  fundamental  principle, 
^'  What  jurors  in  particular  shall  try  the  cause  depends 
upon  the  order  in  which  they  are  called  ;  and  the  result  is  a 
mere  incident  following  the  challenges,  and  not  the  absolute 
selection  of  the  prisoner,  resulting  from  his  power  of  chal- 
lenge," ^ 

An  illustration  of  this  principle  is  found  in  the  practice 
which  followed  upon  the  statute  of  33  Edw.  III.,  which  we 
have  previously  noticed.^  It  was  considered  that  the  de- 
fendant suffered  no  injury  if  permitted  to  make  the  number 
of  challenges  allowed  by  law,  although  the  representative 
of  the  crown  might  stand  any  juror  aside  who,  he  had 
reason  to  believe,  was  eligible  in  the  eyes  of  the  defendant. 
Likewise,  persons  jointly  indicted  could  not  demand  sepa- 
rate trials  as  a  matter  of  right,  in  order  that  their  selection 
of  a  jury  might  not  be  impeded  by  the  challenges  of  co- 
defendants.^ 

§  160.  The  Right  confined  to  the  Trial  of  the  Main 
Issue. —  On  the  trial  of  preliminary  and  other  collateral 
issues,  peremptory  challenges  were  never  allowed,  although 
challenges  for  cause  mij^^ht  be.''  Thus,  certain  of  the  regi- 
cidcs  of  Charles  I.,  having  been  attainted  by  an  act  of  par- 
liament, escaped,  but,  upon  being  retaken,  were  brought  to 
the  bar,  where  they  pleaded  that  they  were  not  the  same 
persons  mentioned  in  the  act ;  and  upon  the  trial  of  this 
issue  of  identity,  the  right  of  challenging  the  jurors  per- 
■emptorily  was  denied.*  So,  upon  the  preliminary  trial  of 
the  sanity  of  an  accused  person,  the  defendant  cannot  ex- 
ercise his  right  of  challenging  jurors  peremptorily,  as  guar- 
anteed by  statute.^ 

1  Mr.  Justice  Story  in  United  States  v.  Marchant,  12  Wheat.  480,  482. 

2  Ante,  §  158.  3  p^,,^^  §  162. 

*2  Hale.  P.  C.  267;  Bac.  Atr.  Juries  E.  9;  Foster  Cr.  L.  42:  4  Bl. 
'Coram.  353,  396;  Co.  Litt.  156.  b.;  Rex  v.  Ratcliffe,  1  W.  Bl.  3,  6;  s.  c, 
IS  How.  St.  Tr.  429;  Ecx  v.  Okey,  1  Levinz,  61;  s.  c,  Sid.  72;  Sir  J. 
Xelyng,  13;  1  Keble,244;  Reg.   v.  Key,  Temple  &  Mew,  623. 

*  Reg.  V.  Okey,  supra.     See,  also.  Rex  v.  Ratcliffe,  supra. 

*  Freeman  v.  People,  4  Den.  1,  22.     In  Opothle-Yoholo  v.  Mitchell,  2 


150  PEREMPTORY  CHALLENGES.  [CH.  X. 

§    IGl.    Xot    allowed    in  Case    of    Special   Jurors.  —  A 

Btiitute  granting  perem})toi'j  challenges  has  no  ai)plication 
in  special  jury  causes.  The  right  of  peremptory  challenge 
is  considered  to  have  been  exercised  in  striking  the  jury.^ 
A  struck  jury  was  never  granted  at  common  law  for  the 
trial  at  bar  of  a  capital  case,^  and  the  reason  in  one  case  was 
stated  to  be,  "for  then  the  prisoner  would  lose  his  chal- 
lenges.'' ^ 

§  162.  Peremptory  Challenges  by  Defendants  jointly  in- 
dicted.—  ( 1 . )  To  the  Same  Number  as  allowed  a  Single  De- 
fendant. —  It  appears  never  to  have  been  doubted  that  at 
common  law,  in  the  case  of  persons  jointly  indicted,  each  was 
entitled  to  the  same  number  of  peremptory  challenges  which 
he  might  claim  if  indicted  singly.*  In  other  words,  joint 
defendants  could  not  be  compelled  to  join  with  each  other 
in  making  their  challenges  ;  ^  therefore,  a  juror  challenged 
by  any  one  of  them  w^as  withdrawn  from  the  panel,  or,  as 
it  is  commonly  said,  was  "  drawn  against  all."  ^ 


Stew.  &  Port.  ]  25,  there  had  been  a  judgment  by  default  rende»-ed  against 
the  defendant  in  an  action  of  assumpsit,  and  a  writ  of  inquiry  awarded 
to  ascertain  the  amount  of  the  damages.  It  was  held  that  upon  the  trial 
of  this  issue  the  defendant  was  entitled  to  challenge  jurors  peremptorily^ 
as  allowed  by  law  in  civil  cases.  Contra,  see  Anon.,  3  Salk.  81. 
f  1  Schwenk  v.  Umsted,  6  Serg.  &  R.  351 ;  Schuylkill  Xav.  Co.  v.  Farr,  4 
Watts  &  S.  362;  Blauchard  v.  Brown,  l^Wallace  Jr.  309;  State  v.  Moore,. 
28  Ohio  St.  595;  O'Byrne  v.  State,  29  Ga.  36;  Cleveland,  etc.  R.  Co.  v. 
Stanley,  7  Ohio  St.  155.  But  see  McDermott  v.  Hoffman,  70  Fa.  St.  31. 
And  where  less  than  twelve  of  the  special  jurors  appeared,  and  the  jury 
was  completed  by  talesmen,  peremptory  challenges  were  allowed.. 
Cleveland,  etc.  R.  Co.  v.  Stanley,  supra. 

2  Farlngton's  Case,  Sir  T.  Jones,  222. 

8  Rex  V.  Duncomb,  12  Mod.  224. 

*  2  Hale,  P.  C.  263 ;  1  Chitty  C.  L.  535. 

*  In  an  early  case  decided  by  the  Supreme  Court  of  Georgia,  it  was  held 
that  when  two  persons  are  tried  together  for  an  offense  which  requires 
their  joint  action  or  concurrence,  such  tliat  an  acquittal  of  either 
will  operate  as  an  acquittal  of  both,  they  may  be  required  to  join  in 
their  challenges.  Hawkins  v.  State,  13  Ga.  322.  But  contra,  it  would 
seem,  was  the  opinion  of  the  court  in  a  later  case.  Cruce  v.  State,  59 
Ga.  83.  88. 

«  2  Hawk.  P.  C,  ch.  41,  §  9;  Bac.  Abr.  Juries  E.  9;  The  Case  of  the 
Regicides,  5  How.  St.  Tr.  979;  s.  c,  Sir  J.  Kelyng,  9. 


§   162.]  BY  DEFENDANTS  JOINTLY  INDICTED.  151 

(2.)  Such  Defendants  jointly  07'  severally  tried  in  Dis- 
cretion of  Court.  —  The  result  followed  that  joint  defend- 
ants, by  insisting  upon  their  right  of  several  challenge, 
might  very  easily  exhaust  a  numerous  panel,  and  thus  the 
trial  was  frequently  postponed  for  lack  of  jurors.  Lord 
Hale  alluded  to  this  circumstance  as  a  great  inconvenience  ; 
"  and,  therefore,"  says  he,  "  in  such  case  they  anciently  used 
to  sever  the  prisoners,  and  so  put  them  to  challenge  apart, 
whereby  they  may  possibly  hit  upon  the  same  persons."  ^ 
In  other  words,  the  prisoners  were  severally  tried,  although 
jointly  indicted.  They  were  usually  given  their  choice  of 
consenting  to  join  in  their  challenges,  or  being  severally 
tried. ^ 

(3.)  Separate  Trials  cannot  he  demanded  as  a  Matter  oj 
Right. —  But  can  persons  jointly  indicted  insist  upon  sepa- 
rate trials  as  a  matter  of  right?  Obviously,  it  might  be 
highly  advantageous  for  one  to  sever  from  his  co-defend- 
ants, that  he  might  secure  for  his  trial  certain  jurors  whom 
the  others  would  challenge  off.  The  old  reports  contain 
little  positive  authority  upon  this  point.  In  one  case  it  was 
briefly  decided  that  they  could  not.^  Whether  they  should 
be  jointly  or  severally  tried  seems  to  have  been  left  to  the 
discretion  of  the  court. ^  The  whole  subject  received  an 
exhaustive  examination  at  the  hands  of  Mr.  Justice  Story 
in  United  States  v.  Marchant,^  in  which  he  reached  the 
conclusion  that,  certainly  upon  principle,  and  probably 
upon  authority,  persons  jointly  indicted  had  no  right  to 
insist  upon  a  several  trial,  in  order  that  they  might  exercise 
a  more  extensive   choice  in  the  selection  of  the  panel  by 

^  2  Hale  P.  C.  263;  2  Hawk.  P.  C,  ch.  41,  §  9. 

2 1  Chitty  Cr.  L.  535;  Cliarnock's  Case,  3  Salk.  81 ;  s.  c,  Holt,  133;  12 
How  St.  Ti-.  1378;  Swan  and  Jeffery's  Case,  Foster  Cr.  L.  104,  lOG;  Grah- 
me's  Case,  12  How  St.  Tr.  673 ;  Stale  v.  Monaquo,  T.  U.  P.  Chavlt.  22 ; 
People  V.  McCalla,  8  Cal.  301 ;  State  v.  Yancey,  3  Brev.  308. 

»  Noble's  Case,  15  How.  St.  Tr.  731,746.  See  also  State  v.  Yancey, 
3  Brev.  306. 

<  People  V.  Howell,  4  Johns.  296.  Contra,  United  States  v.  Sharp, 
1  Peters  C.  C.  118. 

*  4  Mason,  158. 


152  PEREMPTORY  CHALLENGES.  [CH.  X. 

which  they  were  to  be  tried.  This  decision  was  afterwards 
affirmed  by  the  Supreme  Court  of  the  United  States,^  and 
has  been  subse(iuently  regarded  as  settling  the  law  that 
separate  trials  are  granted  only  in  the  discretion  of  the 
court  .- 

However,  cases  may  occur  when  it  would  be  very  proper, 
if  not  the  duty  of  the  court,  to  grant  an  application  for  a 
separate  trial  of  joint  defendants.'  Conversely,  if  in  the 
judgment  of  the  court  good  cause  exists  for  trying 
joint  defendants  severally,  the  court  may  order  a  severance, 
contrary  to  the  desire  of  the  defendants  to  be  tried  jointly.* 
In  some  States  the  right  is  granted  by  statute  to  a  defend- 
ant in  a  joint  indictment  to  demand  a  separate  trial,  or  to 
waive  this  right  and  be  tried  jointly.^ 

(4.)  Number  of  Peremptory  Challenges  allowed  the 
Prosecution  against  Joint  Defendants. —  In  the  case  of  per- 
sons jointly  indicted  and  jointly  tried,  although  the  defend- 
ants may  be  permitted  severally  to  challenge  jurors  per- 
emptorily, to  the  statutory  number,  this  does  not  increase 
the  right  of  challenge  on  the  part  of  the  prosecution.  The 
State  is  restricted  to  the  number  of  peremptory  challenges 
allowed  it  in  the  case  of  the  indictment  of  a  single  person.' 


1  ]2  Wheat.  480. 

2  United  States  v.  Wilson,  Baldw.  C.  C.  81 ;  Hawkins  v.  State,  9  Ala.  137 ; 
Bixbe  V.  State,  6  Ohio,  86;  State  v.  Wise,  7  Rich.  L.  412;  Hill  v.  State, 
2  Yeig.  246:  Maton  v.  People,  15  111.  536;  State  v.  McGrew,  13  Rich. 
L.  316;  United  States  v.  Gibert,  2  Sumn.  19;  United  States  v.  Kelly, 
4  Wash.  C.  C.  528;  State  v.  Soper,  16  Me.  293;  State  v.  Conley,  39  Me. 
78;  State  v.  Smith,  2  Ired.  L.  402;  State  v.  Stoughton,  51  Vt.  362; 
8.  c,  8  Reporter,  762. 

3Com.  V.  James,  99  Mass.  438;  United  States  v.  Collyer,  Whart.  on 
Horn.  App.  489. 

*  Stewart  v.  State,  58  Ga.  577. 

«  People  V.  McCalla,  S  Cal.  301;  Caldwell  v.  State,  34  Ga.  10;  Home 
V.  State,  37  Ga.  80;  R.  S.  Ohio,  1880.  §  7271;  Rev.  Stat.  W.  Va.  1879, 
ch.  55,  §  8. 

fl  Mahan  v.  State.  10  Ohio,  232;  State  v.  Earle.  24  La.  An.  38;  State  v. 
Gay,  25  La.  An.  472.  The  statutes  of  Texas  allow  the  State  one-half  the 
number  of  peremptory  challenges  which  may  be  exercised  by  each  of 
the  joint  defendants.    R.  S.  Tex.  1879  (Code  Cr.  Proc),  Arts.  635,  652. 


§   162.]  BY  DEFENDANTS  JOINTLY  INDICTED.  153 

A  reason  for  this  rule  is  found  in  the  election  of  the  proso- 
cutioQ  to  indict  and  try  the  parties  together.^ 

(5.)  The  Foregoing  how  affected  by  Statute. —  Applying 
the  familiar  rule  that,  in  construing  statutes  changing  the 
common  law,  the  latter  shall  not  be  considered  as  altered 
further  than  the  plain  provisions  of  the  statute  require,  each 
defendant  in  a  joint  indictment  will  be  held  to  be  entitled 
to  the  statutory  number  of  challenges,  unless  the  import  of 
the  statute  is  plainly  to  the  contrary.'^  Statutes  which  guar- 
antee the  right  of  challenge  to  "  every  person,"  which  is 
the  general  form  in  those  relating  to  peremptory  challenges 
in  criminal  cases,  plainly  indicate  that  the  defendants  are 
severally  entitled  to  the  specified  number.^  The  construc- 
tion is  otherwise  where  it  is  specified  that  "  each  party,"  or 


»  Wiggins  V.  State,  T  Lea  (Tenn.),  738. 

2  United  States  v.  Marchant,  4  Mason,  158;  s.  c,  12  Wheat.  480;  United 
States  V.  Johns,  4  Dall.  412;  Hill  v.  State,  2  Yerg.  246;  Hawkins  v.  State, 
9  Ala.  137;  Brister  v.  State,  26  Ala.  107;  United  States  v.  Haskell,  4 
Wash.  C.  C.  412,  n;  Bixbe  v.  State,  6  Ohio,  86;  Maton  v.  People,  15  111. 
536;  State  v.  McLean,  11  La.  An.  .^46;  State  v.  Reed,  47  N.  H.  466; 
Cruce  V.  State,  59  Ga.  83;  State  v.  Stoughton,  51  Vt.  362;  s.  c,  8  Re- 
porter, 762;  Smith  v.  State,  57  Miss.  822. 

8  Ibid.  A  statute  of  Xew  Hampshire  provided  that  "  every  person  ar- 
raigned and  put  on  trial  for  any  offense,  which  may  be  punishable  by 
death  or  by  confinement  to  hard  labor  for  life,  except  when  standing 
mute,  may  challenge  twentj^  of  the  jurors  peremptoril}^,  and  any  others 
for  sufficient  cause."  R.  S.,  ch.  228,  §  8.  A  later  statute  enacted  that 
*' either  party  in  all  civil  causes,  and  the  respondent  in  all  criminal 
causes  not  capital,  shall,  in  addition  to  challenges  for  cause,  have  two 
peremptorj"  challenges.''  Constrning  these  provisions,  Perley,  C.  J., 
said:  "  It  is  the  respondent.,  and  not  a  respondent.,  nor  every  respondent.,  nor 
every  person^  as  in  capital  causes,  that  has  the  right.  Looking  to  the 
language  of  the  statute,  it  evidently  does  not  contemplate  several  rights 
of  challenge  belonging  to  different  persons  on  the  same  side  of  the  cause; 
the  statute,  as  in  civil  actions,  appears  to  recognize  but  one  collective 
party  respondent."  State  v.  Reed,  47  X.  H.  466.  The  Mississippi  Code 
of  1871,  §  2761,  provides  that  "  in  cases  not  capital,  the  accused  shall  be 
allowed  four  peremptory  challenges,  and  the  State  two."  This  statute 
has  been  lately  construed,  and  the  court  made  the  correct  distinctioa 
(which  is  not  noticed  in  the  New  Hampshire  case)  that,  inasmuch  as  the 
common  law  originally  allowed  thirty-five  peremptory  challenges  in  all 
felonies,  so  far  as  felonies  are  concerned,  no  other  cliange  is  made  than 
to  reduce  the  number  of  challenges  to  four.    Therefore  the  defendants  to 


154  PEREMITORY  CHALLENGES.  [CH.  X. 

*'  either  party  "  shall  be  entitled,  etc.,  which  is  the  general 
form  in  statutes  relating  to  challenges  in  civil  cases. ^ 

The  statutes  of  the  United  States  and  of  many  of  the 
States  expressly  require  that  joint  defendants  shall  join  in 
their  challenges.^  In  other  States  each  defendant  is  allowed 
his  separate  challenges.^  In  Texas,  persons  jointly  indicted 
are  entitled  to  challenge  separately,  but  not  to  the  same 
number  as  is  allowed  a  single  defendant.'* 

§  1G3,  By  several  Per.soiis,  Plaintiffs  or  Defendant.s,  in 
a  Civil  Suit. —  Peremptory  challenges  in  civil  cases,  as  we 
have  previously  seen,  had  no  existence  at  common  law.^ 
By  the  terms  of  the  statutes  granting  peremi)tory  chal- 
lenges in  such  cases,  the  number  specified  is  generally  to  be 
exercised  by  "each  party"  or  "either  party."  All  the 
defendants  to  a  suit  constitute  but  one  party  in  the  sense  in 
which  the  term  is  here  used.  The  statute  of  Illinois,  for 
example,  provides  that  "in  all  civil  actions,  each  party 
shall  be  entitled  to  a  challenge  of  three  jurors,  without 
showing  cause  for  such  challenge."^  This  statute,  as 
stated  in  a  recent  case,  has  been  in  force  since  1827,  and  has 
been  always  understood  to  mean  that  "  each  side  to  the 
case,  without  reference  to  the  number  of  persons  in  each, 
in  all  civil  cases,  have  bat  three  peremptory  challenges  ; 
and  this  is  true  whether  there  be  one  or  a  number  of  per- 


a  joint  indictment  for  a  felony  may  each  insist  upon  His  several  right  of 
challenge  to  the  statutory  number.     Smith  v.  Slate,  57  Miss.  822. 

1  Post^  §  1G5,  sub-sec.  2. 

2  Rev.  Stat.  U.  S.,  §  819;  R.  S.  Mo.  1879,  §  1902;  Comp.  L.  Nev.  1873, 
§  1944;  E.  C.  Miss.  1880,  §  3070;  Stat,  at  Large,  Minn.  1873,  p.  1054, 
§  219;  Gen.  Laws  Oreg.  1872  (Cr.  Code),  §  154;  Code  Va.  1873,  p.  1247, 
§  14;  Bullitt's  Ky.  Cr.  Code,  p.  40,  §  198;  Cal.  Tenal  Code,  §  1050;  Ark. 
Dig.  Stat.  1874,  §  1920;  R.  S.  Del.  1874,  oh.  133,  §  16;  Laws  Utah,  187S 
(Code  Cr.  Proc),  §  225;  Rev.  Stat.  W.  Va.  1879,.  ch.  55,  §  8;  Comp.  L. 
Ariz.,  p.  1077,  eh.  11,  §300, 

"  R.  S.  Ohio,  1880,  §  7281 ;  G.  S.  Neb.  1873,  p.  827,  §  470;  1  Bright.  Purd. 
Pa.  Dig.,  p.  384,  §  43;  Battle's  Rev.  X.  C,  p.  338,  §  77;  R.  S.  Wis.  1878, 
§  4689. 

*  R.  S.  Tex.  1879  (Code  Cr.  Proc.),  Arts.  635,  052. 

*  Ante,  §  154. 

«  Rev.  Stat.  1874,  ch.  110,  §  49;  Rev.  Stat.  1845,  p.  417,  §  29. 


§    164.]  IN  THE  FEDERAL  COURTS.  155 

sons,  plaintiff  or  defendant."  ^  A  distinction,  however,  has 
been  taken  by  the  Supreme  Court  of  Michigan  in  an  opin- 
ion delivered  by  Cooley,  C.  J.^  Construing  the  Michigan 
statute,  which  is  in  form  substantially  the  same  as  the  Illi- 
nois statute  just  noticed,  he  held  that  where  several  defend- 
ants unite  on  one  issue  presented  by  the  same  counsel,  and 
content  themselves  with  a  joint  defense,  they  become  by 
such  voluntary  action  but  one  party  before  the  court,  and 
may  properly  be  restricted  to  the  statutory  number  of  chal- 
lenges allowed  to  a  single  party .^  But  where  such  defend- 
ants plead  separately,  by  different  counsel,  it  is  legally 
supposable  that  each  may  have  a  distinct  and  separate 
defense ;  that  their  interests  may  not  be  identical,  and, 
therefore,  that  they  may  differ  widely  as  to  the  propriety 
of  challenging  in  a  given  instance.  Under  such  circum- 
stances, since  the  right  of  challenge  could  not  be  exercised 
without  agreement,  it  might  be  lost  altogether,  and  it  was 
accordingly  held  that  each  of  the  defendants  so  pleading 
separately  was  entitled  to  the  number  of  challenges  named 
in  the  statute.* 

§  164.  Peremptory  Challenges  in  Federal  Courts. —  By 
an  early  statute  ^  the  number  of  challenges,  in  cases  of  trea- 
son and  other  crimes  punishable  by  death,  was  fixed  at 
thirty-five  in  the  former,  and  twenty  in  the  latter.     In  all 

^  Schmidt  v.  Chicago,  etc.  K.  Co.,  83  111.  405.  To  the  same  effect,  see 
Snodgrass  v.  Hunt,  15  lud.  274;  Sodousky  v.  McGee,  4  J.  J.  Marsh. 
267,  269;  Stone  v.  Segur,  11  vVllen,  568;  Bryan  v.  Harrison,  76  N.  C.  360; 
State  V.  Reed,  47  N.  H.  466;  Blackburn  v.  Hays,  4  Coldw,  227.  The 
statutes  of  the  United  States  and  of  many  of  the  States  expressly  re- 
quire the  parties  plaintiff  or  defendant  in  a  civil  case  to  join  in  making 
their  peremptory  challenges.  Rev.  Stat.  U.  S.,  §  819;  Rev.  Stat.  Mo. 
1879,  §2795;  Gen.  Laws  Oreg.  1872  (Civil  Code),  §187;  Miller's  Rev. 
Code  Iowa,  1880,  §§  2763,  4399;  Stat,  at  Large,  Minn.  1873,  p.  812,  §  153; 
Gen.  Laws  New  Mexico,  1880,  ch.  68,  §  19.  The  Compiled  Laws  of 
Nevada  provide  that  the  several  persons  plaintiffs  or  defendants  must 
join  in  a  challenge  before  it  can  be  made,  "  unless  the  court  otherwise 
order  or  direct."    §  1224.    See  also  Comp.  L.  Utah,  1876,  §  1387. 

ii  Stroh  V.  Hinchman,  37  Mich.  490. 

'  See  Fraser  v.  Jennison,  42  Mich.  206. 

*See  also  Reynolds  v.  Rowley,  2  La.  An.  890. 

fi  Act  of  April  30,  1790;  1  U.  S.  Stat,  at  Large,  119,  §  30. 


156  PEREMPTORY  CHALLENGES.  [CH.  X. 

other  offenses  no  challenges  of  this  description  were  per- 
mitted until  Jifter  the  passage  of  the  act  of  1840/  which, 
among  other  provisions,  enacted  that  courts  of  the  United 
States  should  at  all  times  have  power  to  make  all  necessary 
rules  and  I'cgulations  for  conforming  the  designation  and 
impanelling  of  juries,  in  each  State,  in  substance  to  the 
laws  and  usages  in  force  in  such  States.  This  statute  en- 
abled these  courts  to  adopt  the  laws  and  usages  of  the  sev- 
eral States  in  respect  to  the  challenges  of  jurors,  whether 
peremptory  or  for  cause,  and  in  cases,  both  civil  and  crim- 
inal, with  the  exception  of  those  cases  specifically  provided 
for  by  the  laws  of  the  United  States.^  But  in  the  absence 
of  any  such  adoption  by  rule  of  court,  a  party  to  a  suit  in 
such  court  could  not  claim  the  benefit  of  any  challenges 
guaranteed  by  the  statutes  of  the  State.' 

Now,  however,  the  number  of  challenges  and  the  trial 
thereof  in  all  cases,  civil  and  criminal,  is  regulated  by  a 
statute  of  the  United  States.*  Upon  the  trial  of  a  case  re- 
moved to  the  United  States  Circuit  Court,  under  the  pro- 
visions of  the  Revised  Statutes,^  the  right  of  the  parties  to 
challenge  jurors  is  regulated  by  the  law  of  the  United 
States,  in  case  of  a  conflict  between  the  statutes  of  the  State 
and  the  latter  in  this  particular.^ 

§  165.  Peremptory  Challenges  under  the  Statutes  of 
the  Several  States. —  (1-)  Power  of  Legislature  over. — 
The  legislature  has  power  at  all  times  to  increase  or  dimin- 

^  5  U.  S.  Stat,  at  Large,  304. 

«  United  States  v.  Sliackleford,  18  How.  .588;  United  States  v.  Reed,  1 
Blaicli.  435;  United  States  v.  Cottinghain,  2  Blatch.  470;  United  States 
v.Tallman,  10  Blatch.  21. 

'  United  States  v.  Shackleford,  supra;  United  States  v.  Devlin,  7  Int. 
Rev.  R.  94;  s.  c,  6  Blatch.  71 ;  United  States  v.  Reed,  2  Blatch.  435. 

■•  In  cases  of  treason,  or  where  the  punishment  is  capita],  the  defend- 
ant has  twenty  peremptory  challenges,  the  government  five;  in  all  other 
felonies  the  defendant  lias  ten,  the  government  three;  in  all  other  cases 
the  defendant  and  government  have  three  each.  Act  of  1872.  cli.  333, 
17  U.  S.  Stat,  at  Large,  282;  Rev.  Stat.  U.  S.,  §  819.  Construing  this  sec- 
tion as  to  challenges  in  felonies,  see  United  States  v.  Coppersmith,  4  Fed. 
Rep.  198. 

5  §  643. 

«  State  v.  O'Grady,  3  Woods,  496. 


§    165.]      UNDER  STATUTES  OF  TflE  SEVERAL  STATES.  157 

ish  the  number  of  peremptory  challenges  to  be  allowed  the 
State  or  the  defendant  in  a  criminal  cause.  The  familiar 
constitutional  provision  that  "  the  right  of  trial  by  jury 
shall  remain  inviolate,"  which  is  believed  to  be  a  part  of  the 
organic  law  of  each  State,  is  in  no  respect  violated  by  such 
an  act.  "I  entertain  no  doubt,"  said  Wright,  J.,  "  that 
it  is  entirely  competent  for  the  legislature  to  declare  that 
either  the  people  or  the  accused  may  have  their  challenges 
without  assio-ning  cause,  and  to  limit  the  immber  of  them. 
The  subject  of  peremptory  challenge  has  always  been  un- 
der legislative  control,  and  it  is  onl}^  within  a  comparatively 
recent  period  that  the  right  has  been  extended  even  to  the 
accused  in  a  minor  class  of  criminal  offenses.  Even  if  it 
were  a  right  given  by  common  law,  it  could  be  restrained, 
limited,  or  withheld  altogether,  at  the  legislative  will."  ^ 

In  criminal  cases  no  objection  can  be  raised  to  the  consti- 
tutionality of  a  statute,  passed  after  the  offense  was  com- 
mitted, upon  the  ground  that  it  unfavorably  affects  the  de- 
fendant by  increasing  the  number  of  peremptory  challenges 
of  the  prosecution.  Such  a  law  is  not,  in  the  technical  sense, 
ex  post  facto.^  Any  legislation  which  merely  points  out  the 
mode  of  securing'  to  the  citizen  the  constitutional  right  of 
trial  by  jury  cannot  be  considered  as  an  infringement  of  the 
right.^  As  observed  by  Mr.  Justice  Cooley,  in  his  author- 
itative treatise  upon  Constitutional  Limitations,  "  So  far  as 
mere  modes  of  procedure  are  concerned,  a  party  has  no 
more  right  in  a  criminal  than  in  a  civil  action  to  insist  that 

1  Walter  v.  People,  32  N.  Y.  147,  159.  See,  also,  Jones  v.  State,  1  Ga. 
610;  Boon  v.  State,  1  Ga.  G18;  Com.  v.  Walsh,  124  Mass.  32;  State  v. 
Wilson,  48  N.  H,  398;  State  v.  Pike,  49  N.  H.  406;  Com.  v.  Dorsey,  103 
Muss.  412;  liartzell  v.  Com.,  40  Pa.  St.  462;  Warren  v.  Com.  37  Pa.  St. 
45;  Mountfort  v.  Hall,  1  Mass, 443;  Hndgins  v.  State,  2  Ga.  173;  Slate  v. 
McClear,  11  Nev.  39,  49;  Cregier  v.  Bunton,2  Strob.  L.487;  Dowliiig  v. 
State,  5  Sm.  &  M.  664;  State  v.  Eyau,  13  Minn.  370;  Stokes  v.  People, 
63  N.  Y.  164;  State  v.  Hoy t,  47  Conn.  518. 

2  State  V.  Hoyt,  47  Conn.  518;  VValston  v.  Com.,  16  B.  Mon.  15;  State 
V.  Ryan,  13  Minn.  370. 

3  Dowliiig  V.  State,  5  Smed.  &  M.  664;  Eafe  v.  State,  20  Ga.  60;  Jesse 
V.  State,  20  Ga.  156;  B'iers  v.  Beers,  4  Coini.  535,  539;  Colt  v.  Eves,  12 
Conn.  243;  Be  Peiin.  Hall,  5  Pa.  St.  204,208. 


158  PEREMPTORY  CHALLENGES.  [CH.  X. 

his  case  shall  be  disposed  of  under  the  law  in  force  when  the 
act  to  be  investigated  is  charged  to  have  taken  i)lace."  ^ 

(2.)  Granted  in  Civil  Cases. —  The  statutes  of  many 
of  the  States  allow  a  small  number  of  peremptory  chal- 
lenges in  civil  cases.  The  number  is  variously  fixed  at 
two,'^  three,^  four,*  and  five.*  In  Kentucky  the  number 
allowed  is  indefinite.  Each  party  is  entitled  to  challenge 
peremptorily  one  fourth  of  the  jurors  summoned.* 

In  England  no  peremptory  challenges  are  allowed  in  civil 
cases.  On  one  occasion  Baron  Parke  stated  that  in  prac- 
tice it  had  been  usual,  as  a  matter  of  courtesy,  to  allow 
peremptory  challenges  in  civil  cases  and  misdemeanors,  but 
in  neither  instance  could  they  be  demanded  as  a  matter  of 
right.^ 

(3.)  How  in  Felonies  and  Misdemeanors. —  Another 
striking  innovation  wrought  upon  the  common  law  is  in 
respect  to  challenges  allowed  the  defense  and  prosecution 
in  criminal  cases.  The  number  allowed  the  defendant,  as 
finally  settled  by  the  early  English  statutes,  remains  un- 
changed in  some  of  the  States  in  capital  cases.  In  others, 
however,  this  has  been  varied  according  to  the  discretion  of 
the  legislature.     But  generally  our  statutes  do  not  confine 

1  Cooley  Const,  lim.  (4th  ed.),  331.  See  upon  this  point  Stokes  t. 
People,  53  N.  Y.  164. 

2  K.  S.  Me.  1871,  ch.  82,  §  66;  Comp.  L.  Mich.  1871,  §  6027;  Bupp.  to 
G.  S.  Mass.,  Acts  of  1862,  ch.  84,  §  1;  G.  S.  Vt.  App.  1870,  p.  1031, 
No.  39;  R.  S.  So.  Car.  1873,  p.  523,  §  26;  Gen.  Stat.  N.  H.,  ch.  212,  §  10; 
R.  S.  Ohio,  1880,  §  5177;  N.  Y.  Code  Rem.  Jus.,  §  1176;  Stat.  Tenn. 
1871,  §  4012;  G.  S.  Conn.  1875,  title  19,  ch  X.,  §  16. 

3  Rev.  N.  J.  1877,  p.  530,  §  40;  R.  S.  111.  1880,  ch.  110,  §49;  Laws 
Minn.  1878,  ch.  21,  §  1;  Comp.  L.  Kan.  1879,  §3799;  R.  S.  Wis.  1878, 
§2851;  Bush  Dig.  Fla.,  ch.  104,  §  33;  Gen.  Laws  Oreg.  1872  (Civil  Code), 
§  187;  R.  S.  Del.  1874,  ch.  109,  §  19;  Ark.  Dig.,  Stat.  1874,  §  3702;  R.  S. 
Mo.  1879,  §  2795;  R.  S.  Tex.  1879,  Art.  3085  (in  county  court);  Gen. 
Laws  New  Mexico,  1880,  ch.  68,  §  18;  Comp.  L.  Utah,  1876,  §  1771. 

4  Code  Ala.  1876,  §3016;  Cal.  Code  Civ.  Proc.  §601;  Rev.  Stat.  W. 
Va.,  ch.  109,  §  23;  Civil  Code  Prac.  La.,  Art.  512;  Battle's  Rev.  N.  C, 
p.  861,  §  229  m;  1  Bright.  Purd.  (Penn.)  Dig.,  p.  837,  §  72;  R.  C.  Miss. 
1880,  §  1708;  Comp.  L.  Nev.  1873.  §  1224;  Colo.  Civil  Code,  §  161. 

5  Miller's  R.  C.  Iowa,  1880,  §  2771. 
8  G.  S.  Ky.  1879,  p.  572,  §  12. 

'  Creed  v.  Fisher,  9  Exch.  472. 


§    165.]      UNDER  STATUTES  OF  THE  SEVERAL  STATES.  159 

the  right  of  peremptory  challenge  to  felonies  alone.  It 
frequently  extends  to  misdemeanors.  Nor  is  the  number  of 
challenges  the  same  for  all  felonies.  Naturally,  the  highest 
number  is  incidental  to  those  felonies  punished  capitally  or 
by  imprisonment  for  life.  As  to  felonies  of  a  lesser  degree, 
the  number  is  generally  graduated  according  to  the  severity 
of  the  punishment. 

The  statutes  have  also  quite  generally  restored  the  right 
of  challenge  possessed  by  the  prosecution  at  common  law, 
but  not  the  unlimited  right.  The  government  generally 
possesses  the  right  wherever  it  is  granted  to  an  accused 
person,  but  not  usually  to  the  same  extent.  The  policy  of 
those  statutes  which  discriminate  against  the  prosecution  in 
this  particular  is  not  apparent.^  The  government  certainly 
has  the  same  right  to  an  impartial  jury  as  an  accused  per 
son,  and,  it  would  seem,  ought  to  be  possessed  of  equal 
facilities  for  procuring  it.     The  legislature  of  Connecticut 


^  It  is  probable  that  the  advantage  of  the  accused  in  the  matter  of  per- 
emptory challenges  grows  out  of  a  vague  conception  that,  in  the  ante- 
cedent steps  of  procuring  the  attendance  of  the  jurors,  the  State  has  au 
opportunity  of  affecting  the  constitution  of  the  panel,  inasmuch  as  the 
jurors  are  necessarily  brought  in  by  its  own  officers.  There  was  doubt- 
less a  rational  ground  for  this  feeling  under  the  common-law  system  of 
summoning  jurors.  We  have  seen  that  they  were  selected  in  the  discre- 
tion of  the  sheriff  (ante,  §  44),  and  Lord  Coke  laments  that,  "through 
the  subtilty  and  untrue  demeanor  of  sheriffs  and  their  ministers,  great 
extortions  and  oppressions  be  and  have  been  committed  and  done  to 
many  of  the  king's  subjects,  by  means  of  returning,  at  sessions  holden 
within  counties  and  shires  for  the  body  of  the  shire,  the  names  of  such 
persons  as,  for  the  singular  advantage,  etc.,  of  the  said  sheriffs  and  their 
ministers,  will  be  wilfully  foresworn  and  perjured  by  the  sinister  labour 
of  the  said  sheriffs  and  their  ministers,  by  reason  whereof  many  sub- 
stantial persons,  the  King's  true  subjects,  have  been  wrongfully  indicted 
of  murders,  felonies  and  misdemeanors."  3  Co.  Inst.  33.  The  sheriff 
is  here  made  the  scape-goat  of  the  untimely  taking  off  of  "  substantial '' 
persons,  which  was  doubtless  instigated  by  ministers  of  the  crown,  that 
rich  forfeitures  might  ensue.  It  is  clear  that  this  officer  was  too  fre- 
quently subservient  to  the  wishes  of  the  crown  in  matters  of  this  kind. 
But  all  this  apprehension  of  fraud  in  the  return  of  jurors  ought  to  be 
dissipated  by  the  ample  checks  of  our  statutes,  which  generally  have 
utterly  shorn  the  sheriff  of  all  power  of  selection  possessed  at  common 
law  (ante,  §§  45,  69) . 


160  PEREMirrORY  CHALLENGES.  [CH.  X. 

has  lately  adopted  this  view.  Prior  to  the  year  1879,  the 
State  was  entitled  to  only  two  i^ereniptory  challenges,  as 
against  a  liberal  allowance  to  the  defendant.^  By  a  statute 
of  this  year  it  was  provided  that,  "upon  the  trial  of  any 
criminal  prosecution,  the  State  may  challenge  peremptorily 
as  many  jurors  as  the  accused  is  allowed  by  law  to  chal- 
lenge peremptorily  in  such  case."  ^  A  more  striking  illus- 
tration of  the  growth  of  this  view  is  seen  in  the  legislation 
of  Massachusetts.  Prior  to  the  year  18Gy,  the  defendant  in 
capital  cases,  and  in  those  punished  by  imprisonment  for  life, 
was  entitled  to  twenty  peremptory  challenges,  against  which 
the  commonwealth  had  none.  The  legislature  of  this  year 
granted  to  the  commonwealth  five  peremptory  challenges  in 
such  cases,^  which  allowance  was  later  increased  to  ten,*  and 
finally  to  twenty-two,*  without  any  increase  in  the  number 
previously  allowed  to  the  defendant. 

(4.)  In  Alabama,  in  capital  cases,  the  defendant  has 
twenty-one  peremptory  challenges,  the  State  fourteen  ;  in 
felonies  not  capital,  the  defendant  has  fifteen,  the  State  ten  ; 
in  misdemeanors,  the  defendant  has  six,  the  State  four.^ 

(5.)  In  Arkansas,  in  all  felonies,  the  defendant  has 
twenty,  the  State  ten  ;  in  misdemeanors,  the  defendant  and 
State  have  three  each.' 

(G.)  In  California,  in  capital  cases,  or  where  the  punish- 
ment is  imprisonment  for  life,  the  defendant  has  ten,  the 
State  five  ;  in  other  cases  the  defendant  has  five,  the  State 
three. ^ 

(7.)  In  Colorado,  the  people  and  the  accused  are  en- 
titled each  to  fifteen  in  capital  cases,  and  in  all  other  cases 
where  the  punishment  may  be  imprisonment  in  the  peniten- 
tiary, to  ten  each.^ 

^  See  infra,  subsec.  8. 

2  Laws  Mass.  1879,  p.  363. 

3  Laws  Mass.  1869,  eh.  151. 

*  Laws  Mass.  1873,  ch.  317,  §  2. 
6  Laws  Mass.  1875,  ch.  107.  §  1 
«  Code  Ala.  1876,  §§  4879,  4880. 
1  Avk.  Dig.  1874,  §§  1912,  1913. 

Cal.  Penal  Code,  §  1070. 
9  Laws  Colo.  1877,  §  873. 


§    165.]       UNDER  STATUTES  OF  THE  SEVERAL  STATES.  161 

(8.)  In  Connecticut,  in  capital  cases,  the  defendant  has 
twenty  ;  in  cases  where  the  punishment  is  imprisonment  for 
life,  ten  ;  in  cases  where  the  punishment  is  imprisonment  in 
the  penitentiary  for  a  period  less  than  life,  four ;  in  all 
other  cases  he  has  two.  The  State  has  an  equal  number  in 
«ach  case.^ 

(9.)  In  Delaware,  in  capital  cases,  the  defendant  has 
twenty,  the  State  none  ;  in  cases  of  other  crimes  and  mis- 
demeanors, the  defendant  has  six,  the  State  three.  But  if 
the  State  exercises  this  right  of  challenge,  the  defendant  is 
entitled  to  challenge,  beyond  the  number  of  six,  as  many  as 
are  challenged  by  the  State. '^ 

(10.)  In  Florida,  in  capital  cases,  the  State  has  six;  in 
cases  not  capital,  the  State  and  the  defendant  have  four 
«ach.^ 

(11.)  In  Georgia,  in  felonies  punished  by  death  or  by 
imprisonment  in  the  penitentiary  for  four  years  or  longer, 
the  defendant  has  twenty  challenges,  the  State  ten ;  in 
other  felonies  the  defendant  has  twelve,  the  State  six.* 

(12.)  In  Illinois,  in  capital  cases  or  where  the  punish- 
ment is  imprisonment  for  life,  the  defendant  and  the  State 
have  twenty  each  ;  in  cases  where  the  punishment  is  more 
than  eighteen  months'  imprisonment,  the  defendant  and  the 
State  have  ten  each  ;  in  all  other  cases  the  defendant  and 
the  State  have  six  each.^ 

(13.)  In  Indiana,  in  capital  cases,  the  defendant  has 
twenty,  the  State  six ;  in  other  felonies,  the  defendant  has 
ten,  the  State  three  ;  in  misdemeanors,  tlie  defendant  and 
the  State  have  three  each.^ 

(14.)  In  Iowa,  in  capital  cases  or  where  the  punishment 
is  imprisonment  for  life,  or  may  be  so  in  the  discretion  of 
the  court,  the  defendant  has  twenty,  the  State  ten  ;  in  any 


1  G.  S.  Conn.  1875.  p.  538,  §  5;  Sess.  Laws  Conn.  1879,  p.  3G3. 

2  Laws  Del.  1874,  ch.  133.  §  16. 

3  Biisirs  Dig.  Fla.,  p.  444,  §  34. 
*  Code  Ga.  1873,  §  4643. 

»  R.  S.  111.  1880,  ch.  38,  §  432. 
•«  2  Ind.  Rev.  1876,  p.  393,  §§  81  and  82. 

(11) 


162  PEREMTTORY  CHALLENGES.  [CH.  X. 

other  felony,  the  defendant  has  twelve,  the  State  six  ;  in 
misdemeanors,  the  defendant  has  six,  the  State  three.' 

(15.)  In  Kansas,  in  capital  cases  or  where  the  punish- 
ment is  imprisonment  for  life,  the  defendant  has  twelve, 
the  State  six ;  in  other  cases,  where  the  punishment  is  a 
term  of  years  in  the  penitentiary,  but  no  extreme  limit 
is  fixed,  the  defendant  has  eight,  the  State  six;  in  other 
cases,  punished  by  imprisonment  in  the  penitentiary,  the 
defendant  has  six,  the  State  three  ;  in  misdemeanors,  the 
defendant  has  four,  the  State  two.^ 

(16.)  In  Kentucky,  in  all  felonies,  the  defendant  has 
twenty,  the  State  five  ;  in  misdemeanors,  the  defendant  and 
State  have  three  each.'^ 

(17.)  In  Louisiana,  in  cases  where  the  punishment  is^ 
imprisonment  at  hard  labor  for  twelve  months  or  more,, 
the  defendant  has  tAvelve,  the  State  six.* 

(18.)  In  Maine,  in  capital  cases,  the  defendant  may 
challenge  ten  while  the  jury  is  being  formed,  and  one  more 
after  it  is  complete.'^ 

(19.)  In  Maryland,  in  capital  cases  or  where  the  })un- 
ishment  is  imprisonment  for  life,  the  defendant  has 
twenty,  the  State  four.^ 

(20.)  In  Massachusetts,  in  capital  cases  or  where  the 
punishment  may  be  imprisonment  for  life,  the  defendant 
has  twenty,  the  State  twenty-two ;  in  other  cases  the 
State  has  two.^ 

(21.)  In  Mississippi,  in  capital  cases,  the  defendant  has 
twelve,  the  State  six ;  in  cases  not  capital,  the  defendant 
has  four,  the  State  two.^ 

(22.)  In  Missouri,  in  capital  cases  or  where  the  pun- 
ishment is  imprisonment   for  life  in  the  penitentiary,  the 

1  Miller's  K.  C.  Iowa,  1880,  §  4413. 

2  Comp.  L.  Kan.  1879,  §§  4G90  and  4691. 

3  Bullitt's  Cr.  Code,  p.  41,  §§  203,  204. 
*  R.  S.  La.  1876,  §§  997,  998. 

5R.  S.  Me.  1871,  ch.  134,  §  12. 

6R.  C.  Md.  1878,  p.  563,  §18. 

^  G.  S.  Mass.  1860,  ch.  172,  §  4;  Acts  of  1875,  ch.  167.  §  1. 

»  R.  C.  Miss.  1880,  §  3076. 


165.]      UNDER  STATUTES  OF  THE  SEVERAL  STATES.  163 

defendant  has  twenty ;  if  the  offense  be  punishable  by- 
like  imprisonment,  not  less  than  a  specified  number  of 
years,  and  no  limit  to  the  duration  of  such  imprisonment 
is  declared,  the  defendant  has  twelve  ;  in  any  other  case 
punishable  by  imprisonment  in  the  penitentiary,  the  de- 
fendant has  eight ;  in  cases  not  punishable  with  death  or 
imprisonment  in  the  penitentiary,  the  defendant  has  four. 
In  cases  specified  in  the  first  of  the  foregoing  clauses,  the 
State  has  eight ;  in  cases  specified  in  the  second,  six ;  in 
all  other  cases,  four,  except  that,  in  cities  having  a  popu- 
lation of  over  one  hundred  thousand  inhabitants,  the  State 
has,  in  cases  specified  in  the  first  clause,  fifteen  ;  in  cases 
specified  in  the  second  clause,  ten ;  in  all  other  cases,  four.^ 

(23.)  In  Michigan,  in  capital  cases,  the  defendant  has 
thirty,  the  State  fifteen.^ 

(24.)  In  Minnesota,  in  capital  cases  or  where  the  pun- 
ishment is  imprisonment  for  life,  the  defendant  has 
twenty,  the  State  seven;  in  other  cases,  the  defendant  has 
five,  the  State  two.^ 

(25.)  In  Nebraska,  in  capital  cases,  the  defendant  has 
sixteen,  the  State  three  ;  in  cases  where  the  imprisonment 
may  exceed  eighteen  months,  the  defendant  has  eight,  the 
State  three  ;  in  all  other  cases,  the  State  and  defendant  have 
three  each.* 

(26.)  In  Nevada,  in  capital  cases,  the  defendant  has  ten, 
the  State  five  ;  for  any  other  offense,  the  defendant  has  five, 
the  State  three. ^ 

(27.)  In  New  Hampshire ,  in  capital  cases,  the  defendant 
has  twenty  ;  in  other  cases,  the  defendent  has  two  ;  in  each 
of  the  foregoing  instances,  the  State  has  two.^ 

(28.)  In  New  Jersey,  in  capital  cases,  misprision  of  trea- 
son, .sodomy,  rape,  arson,  burglary,  robbery,  forgery,  per- 
jury, or  subornation  of  perjury,  the  defendant  has  twenty, 

1  R.  S.  Mo.  1879,  §§  1900, 1902. 

2  Gomp.  L.  Mich,  1871,  §  7951. 

8  Stat,  at  Large,  Minu.  1873,  p.  1055,  §  231. 
*  G.  S.  Neb.,  p.  826,  §  467. 

5  Comp.L.  ISTev.  1873,  §  1960. 

6  Gen.  Stat.  N.  II.  1867,  p.  493,  §§  8  and  9. 


164  PEREMPTORY  CHALLENGES.  [CII.  X. 

the  State  ten  ;  in  other  cases,  the  defendant  has  three,  the 
State  three. ^ 

(29.)  In  Xeiv  York,  in  capital  cases,  the  defendant  and 
the  State  have  thirty  each  ;  in  fch)nics  punished  by  impris- 
onment in  the  penitentiary  for  ten  years  or  more,  the  de- 
fendant has  twenty  ;  in  all  other  cases,  the  defendant  has 
five;  in  all  felonies  and  misdemeanors,  the  State  has  the 
same  number  as  the  defendant.^ 

(30.)  In  Nortli  Carolina,  in  capital  cases,  the  defendant 
has  twenty-three,  the  State  four;  in  other  cases,  the  de- 
fendant has  four,  the  State  two." 

(31. )  In  Ohio,  in  capital  cases,  the  defendant  has  twenty- 
three,  the  State  two  ;  in  other  cases,  the  defendant  and 
State  have  two  each."* 

(32.)  In  Oregon,  in  capital  cases,  or  where  the  punish- 
ment is  imprisonment  for  life  in  the  penitentiary,  the  de- 
fendant has  twelve,  the  State  six  ;  in  other  cases,  the  defend- 
ant and  State  have  three  each.^ 

(33.)  In  Pennsylvania,  in  capital  cases  and  certain  other 
heinous  offenses,  the  defendant  has  twenty  ;  in  other  cases 
the  defendant  has  four;    in  all  cases,  the  State  has  four.® 

(34.)  In  Rhode  Island,  the  defendant  and  the  State  may 
each  challenge  one  juror  m  six.^ 

(35.)  In  South  Carolina,  in  cases  of  murder,  man- 
slaughter, burglary,  arson,  rape,  or  grand  larceny,  the  de- 
fendant has  twenty,  and  in  all  other  criminal  cases,  five  ; 
the  State  has  two  only,  in  all  cases. "^ 

(36.)  In  Tennessee,  in  capital  cases,  the  defendant  has 
thirty-five ;  for  other  offenses  above  the  grade  of  petty  lar- 
ceny, he  has  twenty-four.    The  State  has  ten  in  each  of  the 

1  Rev.  N.  J.  1S77,  p.  280,  §  71 ;  p.  530,  §  40;  p.  r)31,  §  41. 

2  3  Rev.  Stat.N.  Y.  (6th  ed.),  p.  1029,  §  0  H  seq.;  N.  Y.  Code  Cr.  Proc. 
(ch.  442,  Laws  of  1881),  §  370. 

3  Battle's  R^v.  N.  C,  p.  338,  §  77. 

4  R.  S.  Ohio,  1880,  §§  7272,  7274,  7277. 

5  Gen.  Laws  Oreg.  1872  (Cr.  Code),  §  loo. 
«  1  Bright.  Purd.  (Pa.)  Dig.,  §§  39  and  40. 

7  Gen.  Stat.  R.  I.  1872,  p.  434,  §  34. 

8  R.  S.  So.  Car.  1873,  p.  747,  §  2. 


§    166.]       UNDER  STATUTES  OF  THE  SEVERAL  STATES.  165 

foregoing  cases.  For  offenses  below  the  grade  of  petty 
larceny,  the  State  and  the  defendant  have  five  each.^ 

(37.)  In  Texas,  in  capital  cases,  the  defendant  has  twen- 
t}^  the  State  ten  ;  in  other  cases,  the  defendant  has  ten,  the 
State  five.^ 

(38.)  Ill  Vermont,  in  all  criminal  prosecutions  in  the 
county  court,  the  defendant  has  six  ;  the  State  has  two.^ 

(39.)  In  Virginia,  upon  the  trial  of  a  felony,  a  panel  of 
sixteen  is  formed,  from  which  the  defendant  may  strike 
four.     The  State  has  no  right  of  peremptory  challenge.^ 

(40.)  In  West  Virginia,  upon  the  trial  of  a  felony,  a 
panel  of  twenty  is  formed,  from  which  the  defendant  may 
strike  eight.  No  other  peremptory  challenge  is  allowed  the 
defendant,  and  the  State  has  none.^ 

(41.)  In  Wisconsin,  in  capital  cases,  the  defendant  has 
twenty-four,  the  State  twelve.  In  other  cases,  the  defend- 
ant and  the  State  have  four  each.*^ 

§  166.  Construction  of  the  foregoing  Statutes. —  (1)- 
Suits  prosecuted  upon  Information,  lultetJier  Civil  or 
Criminal. —  For  the  purpose  of  making  peremptory  chal- 
lenges, a  bastardy  proceeding,  prosecuted  by  the  State 
upon  information,  has  Ijeen  regarded  as  a  civil  suit."  The 
object  of  such  a  suit  is  not  to  punish  the  defendant  for  an 
act  done  to  the  injury  of  the  public,- but  to  indemnify  the 
county  against  a  liability  for  the  support  of  a  bastard 
child,  of  which  the  defendant  is  by  law  the  reputed 
father.**  Likewise,  in  a  complaint  under  a  statute  of 
forcible  entry  and  detainer,'*  and  in  an  action  of  debt 
brought  by  a  city  council  to  recover  a  penalt}^  imposed  by 

1  Stat.  Tenn.  1871,  §§  4013,  4014. 

2  K.  S.  Tex.  1879  (Code  Cr.  Proc),  Arts.  G35  and  652. 

3  R.  L.  Vt.  18S0,  §§  1653,  1654. 

*  Code  Va.  1873,  p.  1246,  §§  7  and  9. 
5  Rev.  Stat.  W.  Va.  1879,  cli.  55,  §§  3  and  4. 
6R.  S.Wis.  1878,  §4690. 
'  State  V.  Pate,  Busb.  244. 
s  Ibid. 

'•' Qiiiaebaug   Bank    v.    Tarbox,  20  Conn.   510;    Miner  v.  Brown.  _'(> 
Conn.  519. 


166  PEREMPTORY  CHALLENGES.  [CH.  X. 

an  ordinance  for  keeping  for  sale  spirituous  liquors  with- 
out a  license,'  either  party  may  have  the  peremptory 
challenges  allowed  in  civil  cases. 

The  test  in^  doubtful  cases  has  been  stated  to  be  this  : 
*' When  the"  proceeding  is  by  indictment,  it  is  a  criminal 
suit ;  when  by  action  or  other  mode,  although  in  the  name 
of  the  State,  it  is  a  civil  suit."  ^  But  it  was  held  in  a  pro- 
ceeding in  rem  against  certain  intoxicating  liquors  kept 
and  sold  contrary  to  law,  that,  under  a  statute  giving 
the  State  a  limited  right  of  peremptory  challenge  in  all 
criminal  cases,  the  prosecution  might  challenge  a  juror 
peremptorily.  "  The  present  complaint,"  said  Ames,  J., 
"  although  primarily  a  process  in  rem,  to  procure  the  con- 
demnation and  forfeiture  of  liquors  illegally  kept  for  sale, 
involves  a  criminal  charge  specifically  set  forth,  of  which 
the  forfeiture  is  the  punishment."  ^  The  test,  therefore, 
prescribed  by  the  North  Carolina  court  does  not  seem  to  be 
conclusive. 

(2.)  Where  the  Punishment  may  he  Capital,  the  num- 
ber of  challenges  guaranteed  to  a  defendant  in  a  capital  case 
must  be  allowed.  The  eri'or  of  a  refusal  to  allow  such 
number  will]  not  be  cured  by  the  ]\xvy  assessing  the  pun- 
ishment at  imprisonment  only."* 

(3.)  Or  for  a  Definite  Term  of  Imprisonment. —  Upon 
the  same  principle,  under  a  statute  allowing  peremptory 
challenges  "  for  an  offense  punishable  with  death  or  impris- 
onment^in  a  State  prison  ten  years  or  any  longer  time," 
the  right  [to]  such  peremptory  challenges  exists  where  the 
defendant  may  be  'punished  by  imprisonment  in  a  State 
prison  for  ten  years,  although  the  case  is  one  in  which  the 
court  may^impose'a  shorter  term  of  imprisonment.^ 

^  Kleinback  v.  State,  2  Speers  L.  418. 

2  State  V.  Pate,  Busb.  244. 

'^  Com.  V.  Certain  Intoxicating  Liquors,  107  Mas?.  216. 

*  Fowler  v.  State,  8  Baxt.  573. 

•'•  Dull  V.  People,'4  Den.  91. 


CH.  XI.]     GROUNDS  OF  CHALLENGE  FOR  CAUSE.  167 


CHAPTEE   XI. 

OF    THE    GROUNDS    OF    CHALLENGE   FOR   CAUSE. 

ARTICLE  T. — Various  enumerated  Grounds. 
II. —  Bias.  Prejudice  or  Opinion. 


ARTICLE  I. —  Various  enumerated  Grounds. 

section. 

170.  Challenges  for  Principal  Cause. 

(1.)  In  General.    . 
(2.)  In  Criminal  Cases. 

171.  Challenges  to  the  Favor. 

172.  The  Distinction  disappearing. 

173.  A  Distinctive  Statutory  Sj'stem  in  some  States. 

174.  Lack  of  Statutory  Qualifications. 

(1.)  Juror  must  be  qualified  at  the  Time  of  Senice. 

(2.)  Non-resident. 

(3.)  Not  a  Voter. 

(4.)  Not  a  Freeholder. 

(5.)  Not  a  Householder. 

(6.)  Not  a  Tax-Payer. 
17.5.     Statutory  Causes  of  Challenge  not  Exclusive  of  Others. 
17(L     Alienage. 
177.     Ignorance  of  the  English  I,anguage. 

(1.)  In  Genei-al. 

(2.)  Not  a  Ground  of  Challenge  in  Colorado. 

(3.)  A  Contrary  Rule  in  Texas  and  other  States. 

175.  Consanguinity  and  Affinity. 

(1.)  Common  Law  Rule  as  to  Consanguinitj'. 

(2.)  Meaning  of  the  Term  Affinity. 

(3.)  Common  Law  Rule  as  to  Affinity. 

(4.)  General  Rule  that  the  Relationship  must  be  to  a  Party 

of  Record. 
(").)  Exceptions  to  this  Rule. 
(6.)  Mode  of  reckoning  Degrees. 


168  GROUNDS  OF  CHALLENGE  FOR  CAUSE.  [CII.  XI. 

179,     Interest,  Public  or  Corporate. 

(1.)  Tax-Paj-er  in    ^luuicipal  Corporation  disqualified    at 
Coninion  Law. 

(2.)  Tills  Disqualitlcation  removed  by  Statute. 

(3.)  Members  of  Private  Corporations. 
ISO.    Interest.  Private. 

(1.)  Direct  Interest  in  Result  of  Suit. 

(2.)  Contingent  Interest  as  Surety. 

181.  Membersbip  in  Associations  for  the  Suppression  of  Crime. 

182.  Membership  in  Benevolent  Associations. 

183.  Prior  Service. 

(1.)  In  General  —  Statutes  against  Professional  Juror 
(2.)  In  the  same  or  a  similar  Case. 

184.  Landlord  and  Tenant. 

185.  Business  Relations  —  Employer  and  Employee. 
18G.    Previous  Misconduct  as  a  Jui-or. 

187.    Party  to  another  Suit  at  same  Term. 

§  170.  Challenges  for  Principal  Cause. —  (1.)  In  Gen- 
eral.—  "We  have  hitherto  considered  the  challenge  to  the 
array  and  the  peiemptory  challenge  to  the  individual  juror. 
These  are  important  aids  in  the  process  of  procuring  an 
impartial  jury,  but  are  not  of  superior  importance  to  chal- 
lenges for  cause.  The  peremptory  challenge,  as  we  have 
seen,^  was  allowed  at  common  law  only  in  cases  of  treason,, 
misprision  of  treason  and  felony  ;  but  challenges  for  cause 
coidd  be  made  in  all  cases,  criminal  and  civil.  In  a  civil 
case,  the  lack  of  any  of  those  qualifications  demanded  by 
the  writ  of  venire  facias  was  a  pointed  cause  of  challenge^ 
Thus,  the  writ  directed  the  summoning  of  liberos  et 
Jegales  homines,  and,  therefore,  villeins,  outlaws,  excom- 
municated persons  and  aliens  were  excluded.  The  sheriff 
was  directed  to  take  them  devicineto,  and  therefore,  origin- 
ally, they  were  subject  to  challenge  if  not  of  the  same 
hundred  where  the  cause  of  action  arose,  though  later  this 
challenge  became  obsolete,  it  being  sufficient  that  they  were 
taken  de  corpore  comitatiis.  The  next  qualification  de- 
manded by  the  writ  was  "  quorum,  quilibet  liaheat  qiiatuor 
Uhras  terixe,  teneriienl.  vel  reddit  per  annum  ad  minus ;. 
hence  the  challenge  for  want  of  freehold.  Finally,  a  gen- 
eral fitness  was  suggested  by  the  clause  "^;er  quos  ret 
1  Ante,  §  156. 


§    170.]  VARIOUS  ENUMERATED  GROUNDS.  16^ 

Veritas  melius  sciri  potest,"  and  ii  particular  cause  of  dis- 
qualification by  the  injunction  "  qui  nee  (the  plaintiff)  7iec 
(the  defendant)  aliqua  afimtate  attingunt.  Therefore^ 
Lord  Chief  Baron  Gilbert  says  :  "  All  causes  of  objection 
from  partiality  or  incapacity,  consanguinity  and  affinity, 
are  contained  in  the  writ ;  if  the  juror  be  under  the  power 
of  either  party,  as  if  counsel,  serjeant  of  the  robes,  or 
tenant,  these  are  expressly  within  the  intent  of  the  writ ; 
so  that,  if  he  has  declared  his  opinion  touching  the  matter, 
or  has  been  chosen  arbitrator  by  one  side,  or  done  any  act 
by  which  such  an  opinion  might  be  conceived,  as  if  he  has 
eaten  and  drank  at  the  expense  of  either  party  after  he  is 
returned.  All  incapable  persons,  as  infants,  idiots  and 
people  of  non-sane  memory,  are  likewise  excluded."  ^ 

All  of  the  foregoing  are  laid  down  by  the  old  authorities 
as  principal  causes  of  challenge,^  and,  as  we  have  before 
stated,  positively  exclude  the  juror .^  These  causes  plainly 
show  that  the  juror  obnoxious  to  such  objections  cannot  be 
one  by  whom  the  truth  may  best  be  known,  as  demanded 
by  the  writ. 

(2.)  In  Criminal  Cases. —  What  we  have  hitherto  said 
as  to  challenges  for  principal  cause  and  to  the  favor  has 
reference  to  these  challenges  in  civil  actions.  It  is  obvious 
that  many  of  these  challenges  would  be  good  also  in  crim- 
inal cases.  Serjeant  Hawkins  enumerates  other  principal 
causes  of  challenge  which  were  allowed  in  criminal  cases,* 
viz. :  That  the  juror  was  one  of  the  body  which  found  the 
indictment  of  felony  or  trespass   against  him  ;  ^   that  the 

1  Gilbert's  Hist.  C.  P.  95. 

2  Co.  Litt.  157.  a.;  Bac.  Abr.  Juries  E.  5;  Trials  per  Pais  (6th  ed.). 
137,  et  seq. 

^  Ante,  §  126. 

*  2  Hawk.  P.  C,  ch.  43,  §  27  et  seq. 

5  So  enacted  by  Stat.  25  Edvv.  HE.,  c.  3.  See  Gates'  Case,  10  How. 
St.  Tr.  10S2;  Cook's  Case,  13  How.  St.  Tr.  311,  339;  Kex  v.  Percival, 
1  Sid.  243;  Young  v.  Slaughterford,  11  Mod.  228;  Com.  v.  Hussey, 
13  Mass.  221.  In  au  action  for  malicious  prosecution,  for  causing  the 
plaintiff  to  be  indicted,  he  may  challenge  any  of  the  jurors  who  were 
on  the  grand  jury  that  found  the  indictment.  Eogers  v.  Lamb, 
3  Blackf.  155. 


170        GROUNDS  OF  CHALLENGE  FOK  CAUSE.      [CH.  XI. 

juror  hath  a  claim  to  the  forfeiture  which  shall  be  caused 
hv  the  party's  attainder  or  conviction  ;  or  that  he  hath  de- 
<-lared  his  opinion  beforehand  that  the  party  is  guilty,  or 
will  be  hanged,  or  the  like  ;  that  the  juror  hath  given  his 
<lojrs  the  names  of  the  King's  witnesses.  This  eminent 
authority  was  also  of  the  opinion  that  the  subject  might 
challenge  a  juror  for  favor,  notwithstanding  the  intimation 
found  in  sonic  of  the  books  that  ever}'  one  is  bound  by  his 
allegiance  to  favor  the  King. 

§  171.  Challenges  to  the  Fiivor. —  But  where  the  juror 
was  not  under  an  obvious  bias  toward  either  side,  neverthe- 
less, suspicions  might  arise  against  him.  No  enumeration 
was  ever  attempted  of  what  might  be  alleged  at  common 
law  as  a  challenge  to  the  favor.  The  language  of  Lord 
<'oKE  is  often  repeated,  ''  the  causes  of  favor  are  infinite." 
Tiiey  might  arise  out  of  the  family  or  ])usincss  connections 
of  the  juror  with  one  of  the  parties. 

Thus,  that  the  juror's  son  married  the  plaintiff's 
daughter,  did  not  render  the  juror  subject  to  challenge  for 
l)rincipal  cause,  because  the  affinity  did  not  exist  between 
himself  and  the  party  to  the  suit.  It  might  nevertheless 
^ive  rise  to  a  suspicion  that  the  juror  could  not  decide  the 
case  impartially,  and  this  matter  the  triors  of  the  challenge 
would  determine.^  So,  the  objection  for  favor  might  arise 
out  of  the  subject-matter  of  the  suit.  As  we  read  in  Sal- 
keld  :  "  Upon  a  trial  at  bar  the  question  was,  whether  the 
fair,  called  Way-Hill  fair,  should  be  kept  at  Way  Hill  or  at 
Anderry?  And  one  of  the  jury  was  challenged  because  he 
lived  at  Way  Hill  ;  and  the  objection  was,  that  the  fair  oc- 
<'asioned  manure  to  improve  the  ground.  On  the  other 
side  it  was  considered  that  the  fair  occasioned  trampling  of 
the  grass.  This  being  a  challenge  to  the  favor,  two  of  the 
jurors  were  sworn  to  be  triors,  and  their  oath  was,  '  You 
shall  well  and  truly  try  whether  A.  (the  juryman  chal- 
lenged)    stands    indifferent   between    the    parties   to   this 


issue. 


"  2 


1  Co.  Litt.  157.  a. 

2  Anon..  1  Salk.  152.     This  oath  probably  contains  all  that  is  expressed 


§    173.]  VARIOUS  ENU3IERATED  GROUNDS.  171 

§  172.  The  Distinction  disappejiriuj*. —  As  we  have  else- 
■\vhere  observed,  the  disthictiou  between  challenges  for 
principal  cause  and  to  the  favor  is  passing  away.^  It  has 
been  niainlv  lve[)t  alive  by  the  difference  in  the  method  of 
trial ;  but,  as  the  tendency  of  modern  legislation  is  to  rele- 
gate the  trial  of  all  challenges  to  tho  court,  the  challenge  to 
the  favor  as  such  is  fading  away  with  the  tribunal  by  which 
it  was  determined.  The  objections  formerly  made  under 
this  form  of  challenge  may  still  be  interposed  as  a  challenge 
for  cause,  to  be  finally  determined  by  the  court,  as  formerly 
by  the  triors,  unless  the  statute  gives  a  party  the  right  of 
exception. 

§  173.  A  Distinctive  Statutory  System  in  some  States. 
—  A  system  of  challenging  prevails  in  the  States  of  New 
York,  Arkansas,  California,  Kentucky,  Oregon,  Minnesota, 
Nevada,  and  the  two  territories  of  Arizona  and  Utah,  which 
retains  the  distinction  between  [)rincipal  causes  of  challenge 
and  those  to  the  favor,  but  under  a  different  nomenclature. * 
These  statutes  classify  distinctly  the  grounds  of  challenge 
which  were  allowed  at  common  law\  As  similar  statutes  are 
likely  to  be  introduced  in  other  States,  the  New  York  stat- 
ute—  which  is  a  type  of  them  all  —  is  here  set  out  in  terms. 
The  "general  causes  of  challenge"  in  this  statute  will  be 
recognized  as  good  grounds  of  challenge  for  principal  cause 

by  the  jingling  maxim  of  Lord  Coko,  that  the  juror  ''  must  stand  indif- 
ferent as  lie  stands  unsworn."  Edmonds,  J.,  pronounced  this  maxim  to 
be  unintelligible.  People  v.  Hayes,  1  Edm.  Sel.  Cas.  585.  It  is,  how- 
ever, frequently  alluded  to  as  an  eloquent  expression  of  a  rule  of  law. 

^  The  practice  of  ascertaining  the  qualifications  of  jurors  by  triors 
seems  to  have  been  abolished  in  some  States  at  an  early  date.  State  v. 
Baldwin,  1  Const.  Rep.  (S.  C.)  290;  McGowan  v.  State,  9  Yerg.  184; 
State  V.  Wall,  9  Yerg.  349;  Rollins  v.  Ames,  2  N.  H.  350;  State  v.  Pot- 
ter, 18  Conn.  166,  171;  State  v.  Knight,  43  Me.  11. 

«New  York  Code  Crim.  Proc.  1881,  §§374-378;  Ark.  Dig.  1874, 
^§  1907-1911;  Cal.  Penal  Code,  §§  1071-1074;  Bullitt's  Ky.  Cr.  Code, 
p.  41,  §§  206-210;  Gen.  Laws  Oreg.  1872  (Civil  Code),  §§  181-185;  Stat, 
at  Large,  Minn.  1873,  p.  1055,  §§  233-237;  Sess.  Laws,  Minn.  1878,  cli.24; 
Comp.  L.  Nev.  1873,  §§  1961-1904;  Comp.  L.  Ariz.  1877,  ch.  11, 
§§  317-320;  Sess.  Laws,  Utah,  1878  (Code  Cr.  Proc.).  §§  239-242.  This 
.«,vstem  is  found  in  the  Iowa  Revision  of  1860  (§§  4768-4771),  but  not  in 
the  later  codes  of  1873  and  1880. 


172  GROUNDS  OF  CHALLENGE  FOR  CAUSE.  [CH-   M. 

:it  cominoii  law.'  And  thi.s  is  jiiainly  true  of  the  specitied 
grounds  of  "  iin})lied  l)ias."  The  challenge  for  "actual 
bias"  largel}'  covers  objections  formerly  urged  upon  the 
challenge  for  favor.  The  portion  of  section  37G  included  in 
brackets  is  exceptional,  and  does  not  appear  in  the  statutes 
of  the  other  States  to  which  we  have  alluded.-  The  num- 
bers of  the  sections  in  the  note  are  those  of  the  New  York 
Code  of  Criminal  Procedure  of  1881,^  in  which  the  statute 
is  found.* 

1  Ante.  §  170. 

2  See,  liowever.  Gen.  Law^  Oreg.  1S72.  (Civil  Code),  $  1S5. 

3  Laws  N.  Y.  1881,  ch.  442. 

*  §  374.  Kinds  of  Challengks  for  Cause. —  1.  General,  that  the  juror 
is  disqualified  from  serving  in  any  case.  2.  Particular,  that  he  is  di>- 
(jualified  from  serving  la  the  ease  on  trial. 

§  375.  General  Causes  of  Challenge. —  1.  A  conviction  for  a 
felouj'.  2.  Lack  of  qualifications  required  by  law  (Code  Kem.  Ju,-.. 
§§1027,  1028). 

§  376.  Particular  Causes  of  Challenge. —  These  are  of  two 
kinds.  1.  For  such  a  bias,  as,  when  the  existence  of  the  facts 
is  ascertained,  does  in  judgment  of  law  disqualify  tlie  juror,  and 
which  is  known  in  this  code  as  implied  bias.  2.  For  the  exist- 
ence of  a  state  of  mind  on  the  part  of  the  juror,  in  reference  to 
the  case,  or  to  either  party,  wliich  satisfies  the  court,  in  the  ex- 
ercise of  a  sound  discretion,  tiiat  such  juror  cannot  try  the  issue  imi)ai-- 
tially  and  without  prejudice  to  the  substantial  rights  of  the  party  clial- 
lenging,  and  which  is  known  In  this  code  as  actual  bias.  [But  the 
previous  expression  or  formation  of  an  opinion  or  impression  in  refer- 
ence to  the  guilt  or  innocence  of  the  defendant,  or  a  present  opinion  or 
impression  in  reference  thereto,  is  not  a  sutticient  ground  of  challenge 
for  actual  bias,  to  any  person  otherwise  legally  qualified,  if  he  declare 
on  oath,  that  he  believes  tliat  such  opinion  or  impression  will  not  iullu- 
ence  liis  verdict,  and  that  he  can  render  an  impartial  verdict  according 
to  the  evidence,  and  the  court  is  satisfied  tluit  he  does  not  entertain  such 
a  present  opinion  or  impression  as  would  influence  his  verdict.] 

§  377.  Grounds  of  Challenge  for  Implied  Bias. —  1.  Consan- 
guinity or  affinity  within  the  ninth  degree,  to  the  person  alleged 
to  be  injured  by  tlie  crime  charged,  or  on  whose  complaint  the 
prosecution  was  instituted,  or  to  the  defendant.  2.  Bearing  to  hiuj 
the  relation  of  guardian  or  ward,  attornej"  or  client,  or  client  of 
the  attorney  or  counsel  for  the  people  or  defendant,  master  or  ser- 
vant, or  landlord  or  tenant,  or  being  a  member  of  the  family  of  the 
defendant,  or  of  the  person  alleged  to  be  injured  by  the  offense 
charged,  or  on  whose  complaint  the  prosecution  was  instituted,  or 
n  his  employment  on  wages.      3.   Being  a  party  adverse  to  the  de- 


§    174.]  VARIOUS  ENUMERATED  GROUNDS.  173 

§  174.  Lack  of  Statutory  Qualifications. —  (1.)  Juror 
must  be  Qualified  at  Time  of  Service. —  The  juror's  quali- 
fication must  exist  at  the  time  of  service.  It  is  in  general 
not  sufiicient  that  he  possessed  the  qualification  at  the  time 
the  jury  list  was  prepared.^ 

(2.)  Non- Resident.  —  The  residence  of  a  juror  within 
the  county  dates  from  the  formation  of  a  bona  fide  inten- 
tion to  make  that  county  his  home,  which  is  carried  into  effect 
by  actual  residence  for  a  period,  however  short.  As  stated  by 
the  Supreme  Court  of  California,  "  If  he  had  resided  but 
one  day  with  the  bona  fide  intention  of  making  the  county 
his  home,  and  then  left  with  the  animus  revertendi,  and  ac- 
tually did  return,  his  residence  would  have  dated  from  the 
day  of  his  first  settlement  or  arrival  in  the  county,  and  not 
from  the  date  of  his  return."  ^  But  as  it  is  impossible  for 
a  man  to  have  two  residences  at  one  and  the  same  time,  the 

fendant  in  a  civil  action,  or  having  complained  against,  or  been  ac- 
cused by  him  in  a  criminal  prosecution.  4.  Having  served  on  the  grand 
jury  which  found  the  indictment,  or  on  a  coroner's  jury  which  inquired 
into  the  death  of  a  person  whose  death  is  the  subject  of  the  indictment. 
5.  Having  served  on  a  trial  jury,  which  has  tried  another  person  for  the 
crime  charged  in  the  indictment.  6.  Having  been  one  of  a  jury  formerly 
sworn  to  try  the  same  indictment,  and  whose  verdict  was  set  aside,  or 
which  was  discharged  without  a  verdict,  after  the  cause  was  submitted  to 
it.  7.  Having  served  as  a  juror,  in  a  civil  action  brought  against  the  de- 
fendant, for  the  act  charged  as  a  crime.  8.  If  the  crime  charged  be  pun- 
ishable with  deatli,  the  entertaining  of  such  conscientious  opinions  as 
would  preclude  his  finding  the  defendant  guilty;  in  which  case  he  shall 
neither  be  permitted  nor  compelled  to  serve  as  a  juror. 

§  378.  Challenge  for  Actual  Bias. —  To  be  taken  only  for  the 
cause  specified  in  section  376. 

1  2  Hawk.  P.  C,  c.  43,  §  13;  Kelley  v.  People,  55  N.  Y.  565;  Armsby 
V.  People,  2  Thomp.  &  C.  (N.  Y.)  157;  State  v.  Williams,  2  Hill  (S.  C.) 
381;  Orcutt  v.  Carpenter,  1  Tyler,  250;  Conway  v.  Clinton,  1  Utah,  215. 
But  see  State  v.  Middleton,  5  Port.  484,  486;  State  v.  Ligon,  7  Port.  167. 
Where  the  statute  required  that  the  juror  should  be  a  citizen  who  had 
resided  in  the  district  during  the  six  months  next  preceding  his  selec- 
tion, it  was  held  not  a  sufficient  eompliance  with  the  law  that  certain  of 
the  jurors  who  served  at  a  term  had  been  residents  of  the  district  the 
length  of  time  required  by  law,  but  had  not  become  eitizens  until  two 
days  after  the  commencement  of  the  term  of  court  at  which  they 
served.    People  v.  Shafer,  1  Utah,  260. 

2  People  V.  Stonecifer,  6  Cal.  405,  410. 


174  (iROUNDS  OF  CIIALLEXGE  FOR  CAUSE.  [CH.  XI, 

:icqiiisiti(Mi  of  u  residence  after  ii  removal  Avill  contradict 
any  intention  of  returning  wliich  may  have  at  one  time  ex- 
isted.^ 

(3.)  Xot  a  Voter. —  Under  a  statute  requiring,  as  one 
of  the  qualitk'ations  of  a  juror,  that  he  shall  be  a  voter, 
it  is  suiticient  if  he  possesses  the  qualitieations  of  a  voter, 
whether  registered  or  not.- 

(4.)  Not  a  Freeholder. —  It  is  not  sufficient  that  the 
juror  is  possessed  of  the  qualification  of  freehold  outside 
of  the  county.  It  must  be  of  the  same  county  wherein 
the  issue  is  tried. '^  One  having  an  equitable  interest  in 
land,  and  entitled  to  call  for  the  legal  title,  is  a  freeholder.* 
So  one  who  is  in  possession  of  land  under  a  title  bond,  con- 
ditioned that  the  obligor  will  convey  the  title  in  fee  upon 
payment  of  the  purchase  money,  has,  before  the  purchase 
money  is  paid,  such  an  interest  in  the  land  as  will 
qualify  him  to  act  as  a  juror,  in  a  case  where  the  law 
requires  the  jury  to  be  composed  of  freeholders.^  A 
statutory  requirement  of  freehold  qualification  for  tales- 
men will  not  l)y  implication  be  extended  to  members  of 
the  regular  panel. ^ 

(5.)  Not  a  Householder — The  term  "householder"  has 
no  reference  to  a  holding  of  property.'     It  is  understood 

1  Graham  v.  Trimmer,  6  Kan.  231. 

2Crafc  V.  Com.,  24  Gratt.  602;  State  v.  Courtney,  28  La.  An.  789^ 
State  V.  Salge,  1  Nev.  455.  The  constitutionality  of  a  statute  pre- 
scribing this  qualification  has  been  denied.  Gibbs  v.  State,  3  Heisk.  72; 
Gunter  v.  Patton,  2  Heisk.  257. 

3  2  Hawk.  P.  C,  c.  43,  §  13;  Day  v.  Com.,  3  Gratt.  630;  Wills  v.  State, 
69  Ind.  286.  See  also  State  v.  Cooper,  83  N.  C.  671;  21  Vin.  Abr.,  250, 
§  21.    But  contra,  see  New  Orleans,  etc.  E.  Co.  v.  Hemphill,  35  Miss.  17. 

*  Com.  V.  Helmondoller,  4  Gratt.  536;  State  v.  Ragland,  75  N.  C.  12; 
Com.  V.  Carter,  2  Va.  Cas.  319. 

»  Hawkins,  uhi  supra;  New  Orleans,  &c.  R.  Co.  v.  Hemphill,  35  Miss. 
17.  See  also  Com.  v.  Burcher,  2  Eob.  (Va.)  826;  Kerby  v.  Com.,  7 
Leigh.  747;  Com.  v.  Cunningham,  6  Gratt.  695.  But  one  who  has  sold 
all  the  land  owned  by  him  when  his  name  was  put  upon  the  list  of 
jurors,  and  has  taken  a  mortgage  thereof  to  secure  payment  of  the 
purchase  money,  is  no  longer  a  competent  juror.  Kelley  v.  People,  55 
N.  Y.  565;  2  Th.  &  C.  (N.  Y.)  1.57. 

6  State  V.  Wincroft,  76  N.  C  38. 

'  Nelson  v.  State,  57  Miss.  286. 


§    174.]  VARIOUS  ENUMERATED  GROUNDS.  175 

to  mean  the  "head,  master,  or  person  who  has  the  charge 
of  and  provides  for  a  family,  and  does  not  apply  to  the 
subordinate  members  or  inmates  of  the  household."  ^  Such 
is  the  construction  of  the  term  under  a  statute  of  exemp- 
tions.^ The  same  construction  is  adopted  where  this  term  is 
found  in  jur}^  acts.  The  Supreme  Court  of  Alabama  thus 
define  it  :  "Householder,  in  our  statute,  implies  some- 
thing more  than  the  mere  occupant  of  a  room  or  house. 
It  implies  in  its  term  the  idea  of  a  domestic  establish- 
ment—  of  the  manao-cment  of  a  household."  ^  And  bv 
the  Mississippi  Court  it  is  understood  to  mean  "  a  person 
who  has  a  family,  whom  he  keeps  together  and  provides 
for,  and  of  which  he  is  the  head  or  master.  He  need  be 
neither  a  father  nor  a  husband,  but  he  must  occupy  the 
position  towards  others  of  head  or  chief  in  a  domestic 
establishment."*  The  Texas  Court  of  Appeals  have  got 
the  matter  down  to  the  point  that  they  have  declared  one 
to  be  a  householder  who  simply  "  rents  a  room  and 
boards."^  So  liberal  a  view,  however,  makes  the  quali- 
fication almost  nugatory.  It  is  evident  that  "  house- 
holder"  means  something  more  than  a  mere  occupant  of  a 
room  or  house.'' 

(6.)  Not  a  Tax-Payer. —  Under  a  statute  prescribing  a 
property  qualification  for  jurors,  if  the  juror  is  expressly  re- 
quired to  be  "  assessed  on  the  last  assessment  roll  of  his 
township  or  county,  on  real  or  personal  property  belonging 
to  him,"  the  assessment  itself  is  a  prerequisite  which  cannot 

1  Bowne  v.  Witt,  19  Wend.  475. 

*  Thomp.  OQ  Homesteads  and  Exemptions,  §  65,  and  aatliorities  tliere 
cited.  See  also  Callioun  v.  Williams,  32  Gratt.  19,  to  the  effect  tliat  an 
unmarried  man,  having  no  children  or  other  persons  dependent  upon 
him  living  with  him,  though  he  keeps  house  and  has  persons  hired  by  him 
living  with  him,  is  not  a  houseliolder  within  the  meaning  of  the  Vir- 
ginia statute  of  exemptions.  That  one  may  be  a  freeholder,  and  not 
a  householder,  is  obvious.     Bradford  v.  State,  15  lud.  347. 

»  Aaron  v.  State,  37  Ala.  106. 

*  Nelson  v.  State,  57  Miss.  286;  Brown  v.  State,  57  Miss.  424;  Lester 
V.  State,  2  Tex.  App.  432. 

5  Kobles  V.  State,  5  Tex.  App.  347. 

6  Aaron  v.  State,  37  Ala.  106;  Parmele's  Case,  2  Mart.  313. 


17()  GROUNDS  OF  CHALLENGE  FOR  CAUSE.  [CII.  XI. 

be  disregarded  ;  ^  otherwise  the  simple  possession  of  the 
property,  tilthouiih  not  listed,  is  a  sufficient  qualification.^ 
A  juror  is  not  discjualified  by  reason  of  a  failure  to  [)ay  his 
taxes  for  the  preceding  year,  when  the  county  oflScers  have 
been  enjoined  by  law  from  collecting  the  same.^  Where  the 
selection  of  jurors  is  confined  to  those  "  assessed  for  taxes," 
and  who  have  paid  taxes  for  the  current  year,  this  will  n«t 
include  those  who  have  paid  a  poll  tax  on\y.  The  term 
"  assessed  "  has  reference  to  a  property  valuation.* 

§  175.  Statutory  Causes  of  Challenge  not  Exclusive  of 
others. —  Certain  causes  of  challenge  enumerated  in  a  stat- 
ute are  not  exclusive  of  all  others.  The  grounds  of  chal- 
lenge for  cause  are  so  various  that  any  attempt  to  collate 
them  in  a  statutory  provision  must  necessarily  be  only  par- 
tially successful.  Causes  of  a  most  positive  character  are 
liable  to  arise  out  of  the  facts  of  specific  cases,  which  must 
result  in  a  failure  of  justice  if  the  statutory  causes  only  are 
to  be  recognized.  Such  was  the  rule  laid  down  by  the  Su- 
preme Court  of  Alal)ama,^  which  was  afterwards  departed 
from,®  and  still  later  re-adopted.^  This  rule  exists  in  other 
States.^  It  results  from  this  consideration  :  The  statutory 
causes  of  challenge  correspond  quite  closely  to  what  were 
termed  principal  causes  of  challenge  at  common  law.  But 
we  have  hitherto  seen  that  a  great  variety  of  objections,  not 
less  positive  in  their    character,  might  arise  in  any  case. 


1  People  V.  Thompson,  34  Cal,  671. 

2  State  V.  Doan,  2  Eoot,  451. 

^  State  V.  Heaton,  77  N.  C.  505.  The  finding  of  tlie  trial  court  as  to 
^vllether  a  juror  had  paid  his  taxes,  with  a  view  to  determinine;  his  com- 
petency, is  final,  and  will  not  be  reviewed  upon  appeal.  State  v.  Win- 
croft,  76  X.  C.  38. 

•*  State  V.  Jennings,  15  Rich.  L.  42. 

5  State  V.  Marshall,  8  Ala.  302. 

"  Boggs  V.  State,  45  Ala.  30;  Lj-man  v.  State,  45  Ala.  72. 

7  Birdsongv.  State,  47  Ala.  68;  Smith  v.  State,  55  Ala.  1. 

*«  Chouteau  v. Pierie,  9 Mo.  3 ;  State  v.  West,  69  Mo. 401 ;  Lyles  v.  State, 
41  Tex.  172 ;  I.#eter  v.  State,  2  Tex.  App.  433 ;  Williams  v.  State,  44  Tex. 
34;  Caldwell  v.  State,  41  Tex.  80;  Trinidad  v.  Simpson,  (Sup.  Ct.  Col.; 
22  Al'j.  L.  J.  409;  s.c  ,  10  Cent.  L.  J.  149;  Quesenberry  v.  State,  3  Stew. 
«fe  Port.  308 ;  Dumas  v.  State,  63  Ga.  600. 


§  176.]        VARIOUS  ENUMERATED  GROUNDS.  177 

namely,  causes  of  challenge  to  the  favor,  which  in  the 
words  of  Lord  Coke  were  "  infinite."  Although  many  of 
the  statutes  make  no  reference  to  the  challenge  for  favor, 
still  it  exists  as  a  challenge  for  cause. ^  In  this  connection 
it  is  proper  to  observe  that,  in  a  well  reasoned  case,  the 
Supreme  Court  of  Nevada  recently  held  that  it  was  not 
within  the  power  of  the  legislature  to  deprive  a  citizen  ac- 
cused of  crime  of  the  right  to  challenge  a  juror  for  "  actual 
bias,"  which  we  have  before  stated  to  be  a  modern  appella- 
tion for  a  recognized  cause  of  challenge  to  the  favor  at 
common  law.'^ 

§  176.  Alienage. —  This  has  always  been  held  to  be  a 
good  cause  of  challenge.^  An  alien  is  not  legalis  homo. 
The  objection  however  must  be  taken  before  the  juror  is' 
sworn.*  It  has  indeed  been  held  that,  if  the  alienage  was 
not  discovered  until  after  verdict,  the  objection  might  be 
made  even  then  ;  ■'  but  the  weight  of  authority  is  decidedly 
to  the  contrary.^ 

It  is  stated  in  one  case  to  have  been  decided  that  alienage 
was  not  a  good  cause  of  challenge.^  It  does  not  appear, 
however,  from  the  fuller  report  of  the  same  case,  as  decided 
by  the  Supreme  Court  of  the  United  States,  that  the  juror 
objected  to  was  an  alien,  but  simply  a  non-resident  of  the 
county,  the  cause  being  tried  in  Washington,  and  the  juror 
being  a  resident  of  the  county  of  Alexandria,  Virginia. 
Besides,  the  objection  was  not  taken  until  after  the  juror 
was  sworn.*^ 

1  Ante,  §  152. 

2  state  V.  McClear,  11  Nev.  39.  The  statutory  causes  of  challenge  for 
"  itnplied  bias  "  are  held  to  be  exclusive  of  all  others  under  this  head. 
People  V.  Cotta,  49  Cal.  166;  People  v.  Welch,  49  Cal.  174,  178.  See 
also  State  v.  Thomas,  19  Minn.  484.  But  the  definition  of  "  actual  bias  " 
is  sufficiently  broad  to  embrace  the  most  important  objections  formerly 
taken  to  the  favor. 

3  Ante,  §  170. 

■*  HoUingsworth    v.   Duane,  4  Dall.  353;  Kex.  v.  Sutton,  8  Barn.    & 
Cress.  417;  s.  c,  15  Eng.  L.  &  E(i.  252;  Com.  v.  Thompson,  4  Phila.  215;, 
Borst  V.  Beecker,  6  Johns.  332. 
5  Schumacker  v.  State,  5  Wis.  324;  State  v.  Vogel,  22  Wis.  471. 
"  ^Qd  post,  ch.  XV. 

'  Mima  Queen  v.  Hepburn,  2  Cranch  C.  C.  3. 
V.  Hepburn,  7  Cranch,  290,  297. 
(12) 


178         GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

§  177.  Ijpiorance  of  the  English  Langfiiagc. —  (1.)  In 
General. —  No  doubt  exists  as  to  the  power  of  the  court,  in 
the  exercise  of  its  discretion,  to  set  aside  a  juror,  where  it 
appears,  in  the  process  of  imi^anelling,  that  he  is  ignorant  of 
the  English  hmguage  ;  ^  but  is  the  court  bound  to  do  so 
upon  the  objection  of  a  party  to  a  suit?  In  other  words, 
does  this  ignorance  of  the  hmguage  in  which  judicial  pro- 
ceedings are  conducted  constitute  a  cause  of  challenge?  It 
has  been  held  that  it  does  not. 

(2.)  N'ot  a  Ground  of  Challenge  in  Colorado. —  It  was  so 
held  in  a  late  case  decided  bA'the  Supreme  Court  of  Colorado.'^ 
The  statute  prescribing  the  qualifications  of  jurors  was  in  the 
common  form  :  "All  male  inhabitants  of  the  State,  of  the  age 
•of  twenty-one  years,  who  are  citizens  of  the  United  States, 
or  have  declared  their  intention  to  become  such  citizens,  and 
i\^ho  have  not  been  convicted  of  felon}^,  shall  be  competent 
to  serve  as  grand  and  petit  jurors  in  all  courts  and  judicial 
proceedings  in  the  State."  Three  Mexicans,  who  stated 
ui)0u  the  voir  dire  that  they  were  unable  to  understand  the 
English  language,  were  challenged  for  this  cause  by  the 
|)laintiff  in  error,  and  the  challenge  was  overruled.  The 
<-ause  of  action  arose  in  a  county  which,  with  others,  for- 
merly belonged  to  the  Eepublic  of  Mexico,  but  had  been 
acquired  by  treaty  by  the  United  States,  at  which  time  the 
inhabitants  were  largely  and  almost  exclusively  a  Spanish 
speaking  people.  "These  peoj^le,"  said  the  court,  "are 
in  all  respects  citizens,  and  the  association  of  alienage  and 
its  disabilities  with  ignorance  of  our  language  is  to  be  dis- 
missed." In  view  of  the  fact  that  the  legislation  under  the 
territorial  and  State  governments  of  Colorado  had  proceeded 
without  any  express  reference  to  the  consideration  that,  in 
the  counties  before  mentioned,  the  administration  of  justice 
would  chiefly  depend  upon  these  Mexican  citizens,  the  court 
held  that  it  could  not  liave  been  the  intention  of  the  legisla- 

1  Atlas  Mining  Co.  v.  Johnston,  23  Micli.  36;  State  v.  Rousseau,  28  La. 
An.  579;  People  v.  Arceo,  32  Cal.  40;  State  v.  Marshall,  8  Ala.  302; 
Montague  V.  Com.,  10  Gratt.  767,  772. 

«  Trinidad  v.  Simpson,  22  Alb.  L.  J.  409;   s.  c,  10  Cent.  L.  J.  149. 


§  177.]        VARIOUS  ENUMERATED  GROUNDS.  179 

ture  to  defeat  the  administration  of  tiie  law,  or  greatly 
to  hamper  it  in  these  districts,  by  excluding  the  native  inhab- 
itants from  jury  service  and  putting  that  duty  upon  a  very 
limited  number  of  English  speaking  people.  The  court 
considered  that  the  rule  that  judicial  proceedings  must  be 
conducted  in  the  English  lanjruage  ^  did  not  affect  the  case. 
"  This  proposition,"  said  Elbert,  J.,  "  must  be  taken  sub- 
ject to  the  practical  necessities  that  daily  arise  in  the  ad- 
ministration of  the  law  in  courts  of  justice."  The  object  of 
the  provision,  he  contended,  was  to  secure  a  record  in  En- 
glish, which  would  in  nowise  be  impaired  by  conducting  the 
trial  through  the  intervention  of  an  interpreter. 

(3.)  A  Contrary  Mule  in  Texas  and  other  States. —  In 
view  of  the  discretionary  power  of  the  trial  judge  to  exclude 
persons  incapable  of  understanding  the  English  language, 
and  the  disadvantages  of  employing  an  interpreter,  as  above 
suggested,  it  is  probably  true  that  only  in  cases  of  pressing 
necessity  would  the  court  permit  such  persons  to  sit  upon 
the  jury.  So,  the  question  as  to  whether  the  exclusion  may 
be  effected  by  challenge  has  been  rarely  discussed,  and 
probably  seldom  will  be.  A  contrary  conclusion  to  that 
reached  in  the  case  just  noticed  has  been  reached  by  the 
highest  courts  of  Texas.-  The  refusal  to  allow  the  chal- 
lenge for  this  reason  was  considered  as  an  invasion  of  that 
provision  found  in  the  constitutions  of  the  several  States, 
that  "  the  right  of  trial  by  jury  shall  remain  inviolate."  ^ 
"  It  cannot  be  considered,"  said  the  court,  "  as  remaining 
inviolate  when  the  jurors  can  neither  sjjeak  nor  understand 
the  language  in  which  the  proceedings  are  had.  If  the  trial 
by  jury  is  to  remain  a  substantial  fact  and  an  important  right, 
and  is  not  to  be  substituted  by  a  legal  fiction  bearing  the 
name,  but  wanting  in  the  most  important  qualification  of  a 


1  Civil  Code,  §  -405;  Duntou  v.  Montoyo,  1  Colo.  99. 

-  Lyles  V.  State,  41  Tex.  172 ;  Yanez  v.  State,  6  Tex.  App.  429 ;  Etheridge 
V.  State,  8  Tex.  App.  133;  McCampbell  v.  State,  9  Tex.  App.  124;  Noleu 
V.  State,  9  Tex.  App.  419. 

'■^  See  the  constitutional  provisions  upon  this  point  collated  in  Thomp. 
■Charging  the  Jury,  §  25. 


180         GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XT. 

jury,  uaiiiely,  tho  capacity  to  understand  what  the  pleadings 
contain,  what  is  said  by  the  counsel  in  tlioir  addresses  to  the 
jur}^  and  utterly  una))le  to  coniin-ehend  the  charge  of  the 
court, —  then  it  is  necessary  that  jurors  unable  to  speak  the 
English  language  should  be  excluded  from  the  panel."  ^ 

§  178.  Consangaiinitj  and  Affinity. —  ( 1. )  Common  Lam 
Itule  as  to  Conmruiuiniti/. — Lord  Coke  stated  the  rule  to 
be  that  if  a  juror  be  of  kin  to  either  party  in  any  degree.^ 
however  remote,  he  is  disqualified  to  serve. "^  But  it  would 
seem  that  so  stringent  a  rule  could  hardly  be  necessary  in 
order  to  secure  an  impartial  jury ;  and  therefore  the  pi-ac- 
tice  seems  to  have  settled  down  to  excluding  only  those 
jurors  who  are  related  to  either  of  the  parties  within  the 
ninth  degree.  At  least,  the  rule  is  so  stated  by  the  best 
authorities.^ 

(2.)  Meaning  of  the  Ter^n  Affinity. —  "Affinity,"  said 
Chancellor  Walworth,  "properly  means  the  tie  which 
arises  from  marriage  betwixt  the  husband  and  the  blood 
relatives  of  the  wife,  and  between  the  wife  and  the  blood 
relatives  of  the  husband.  Consequently,  while  the  mar- 
riage tie  remains  unbroken,  the  blood  relatives  of  the  Avife 
stand  in  the  same  degree  of  affinity  to  the  husband  as  they 
do  in  consanguinity  to  her.  Thus,  the  father  of  the  wife 
stands  in  the  first  degree  of  affinity  to  his  son-in-law,  as  he 
does  in  the  first  degree  of  consanguinity  to  his  daughter. 
Relationship  by  affinity  may  also  exist  between  the  husband 
and  one  who  is  connected  by  marriage  with  a  blood  relative 
of  the  wife.  Thus,  where  two  men  marry  sisters,  they 
become  related  to  each  other  in  the  second  desrree  of 
affinity,  as  their  wives  are  related  in  the  second  degree  of 
consanguinity."  ^ 

1  Lyles  V.  State,  41  Tex.  172.177.  The  same  view  was  taken  at  ni.vt 
pHxis  in  Fisher  v.  Philadelphia,  4  Brewst.  305.  and  by  the  Supreme  Court 
of  Louisiana  in  State  v.  Push,  23  La.  An.  14  (disregarding  Gay  v.  Ardry.  14 
La.  28S)  ;  State  v.  Gay,  25  La.  An.  472;  State  v.  Tazwell,  30  La.  An.  884. 

2  Co.  Litt.  157.  a. 

3  3  Bl.  Comm.  363:  1  Chitty  Cr.  L.  541 ;  Tidd's  Pr.  853. 

*  Paddock  v.  Wells,  2  Barb.  Ch.  331,  333.  See  also  Dailey  v.  Gaines, 
1  Dana.  .529. 


§  178.]        VARIOUS  ENUMERATED  GROUNDS.  181 

(3.)  Common  Law  Rule  in  Regard  to  Affinity. —  The 
rule  in  respect  to  affinity  has  been  stated  as  follows : 
•'  Affinity,  or  alliance  by  marriage,  is  a  principal  challenge, 
iind  equivalent  to  consanguinity,  when  it  is  between  either  of 
the  parties ;  as  if  the  plaintiff  or  defendant  marry  the 
■daughter  or  cousin  of  the  juror,  or  the  juror  marry  the 
daughter  or  cousin  of  the  plaintiff  or  defendant,  and  the 
same  continues,  or  issue  be  had.  But  if  the  son  of  the 
juror  hath  married  the  daughter  of  the  plaintiff,  this  is  no 
principal  challenge,  but  to  the  favor,  because  it  is  not  be- 
tween the  parties."  ^  The  issue  here  referred  to  must  be 
living.^  If  either  party  to  the  marriage  which  creates  the 
iiffinity  be  dead,  and  no  issue  living,  the  tie  is  broken  and 
the  disqualification  removed.^ 

(4.)  General  Rule  that  the  Relationship  must  be  to  a 
Farty  of  Record. —  The  general  rule,  as  stated  by  Lord 
■Coke,*  is  that  the  consanguinity  or  affinity  which  will  afford 
^  ground  of  challenge  for  principal  cause  must  exist  be- 
tween the  juror  and  a  party  to  the  suit.  Undoubtedly,  this 
is  still  the  general  rule.  Thus,  it  is  not  a  principal  cause 
of  challenge  to  a  juror  that  he  is  an  uncle  or  a  brother-in- 
law  to  one  of  the  counsel  in  the  case ;  ^  that  his  sister  and 
niece  are  wives  of  two  of  the  brothers  of  a  party  to  the 
suit  ;^  that  the  juror's  sister  is  the  wife  of  a  nephew  of  one 
of  the  parties  ;^  that  the  juror's  brother  is  the  husband  of 
i\  sister  of  one  of  the  parties;^  that  the  juror  married  the 


1  Co.  Litt.  157.  ;i. 

•'•'Co.  Litt.  15G.  ;i.;  Paddock  v.  Wells,  2  Barb.  Cli.  331;  Mounson  v. 
West,  1  Leon.  88;  Jaqiies  v.  Com.,  10  Gratt.  690;  Deaimond  v.  Dear- 
auoiid,  lOInd.  191. 

3  Cain  V.  Ingham,  7  Cow.  478;  Carman  v.  Newell,  1  Den.  25;  Vaunoy 
V.  Givens,  23  N.  J.  L.  201;  State  v.  IShaw,  3  Ired.  L.  532. 

^  Supra,  subsec.  3. 

5  Funk  V.  Ely.  45  Pa.  St.  444;  Wood  v.  Wood,  52  N.  H.  422;  Pipher 
V.  Lodge,  16  Serg.  &  R.  214.  Aliter,  where  the  counsel  have  a  lieu  for 
their  fees  upon  the  proceeds  of  the  suit.     Melson  v.  Dickson,  63  Ga.  685. 

s  Johnson  v.  Richardson,  52  Tex.  481. 

7  Rank  v.  Shewey.  4  Watts,  218. 

*  Chase  v.  Jennings,  38  Me.  44. 


182         GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

widow  of  the  prosecutor's  uncle-/  that  he  is  the  father-in- 
law  of  the  prosecuting  attorney;'^  that  the  juror  is  a  half 
uncle  of  the  plaintiff's  wife.^  On  the  other  hand,  carrying 
out  the  rule,  in  a  suit  by  an  administrator,  a  juror  who  is 
an  uncle  of  the  plaintiff  may  be  challenged  for  this  cause. 
"A  partv,"  said  Black,  C.  J.,  "who  is  an  administrator 
has  no  more  right  to  be  tried  by  his  relations  than  one  who 
sues  in  his  own  right."* 

(5.)  Exceptions  to  this  Rule. — But  instances  are  found 
of  challenges  allowed  on  this  ground,  where  the  relation- 
ship did  not  exist  between  the  juror  and  a  party  to  the 
record.  The  allowance  of  the  challenge  in  such  cases  has 
been  defended  as  being  at  least  within  the  reason  of  the 
rule.  Thus,  in  a  suit  to  which  a  corporate  body  is  a  party, 
relationship  to  a  member  of  such  corporation  was  anciently 
considered  to  be  as  good  a  cause  of  challenge  as  if  such 
member  were  a  party  of  record  to  the  suit.*  And  this  is 
recognized  as  the  rule  at  the  present  time.^  So,  upon  a 
trial  for  arson,  a  conviction  was  reversed  because  the 
nephew  of  the  Avife  of  the  person  whose  house  was  burned 
was  held  to  be  a  competent  juror. ^  Likewise,  the  near 
relatives  of  the  owner  of  a  slave  indicted  for  robbery  w^ere 
excluded  upon  challenge  for  this  cause. ^  On  the  indict- 
ment of  a  jail-keeper  for  negligently  suffering  prisoners  in 
his  charge  to  escape,  it  was  held  to  be  a  good  cause  of 
challenge  to  certain  jurors,  by  the  prosecution,  that  they 
were  relatives  of  the  prisoners  who  had  escaped.^     But  in 

1  Oneal  v.  State,  47  Ga.  229. 

2  State  V.  Jones,  64  Mo.  391.  Nor,  in  a  civil  suit,  that  the  juror  is  a 
hrother  of  one  of  the  counsel  of  the  parties.  Pipher  v.  Lodge,  16  Serg. 
&  R.  214. 

3  Eggleston  v.  Smiley,  17  Johns.  133. 

*  Balsbaugh  v.  Frazer,  1!)  Pa.  St.  95,  98.  So,  pecuniary  interest  of  a 
juror  as  an  executor,  in  the  event  of  the  suit,  is  as  good  a  ground  of 
challenge  as  personal  interest.     Sniull  v.  Jones,  6  Watts.  &  S.  122. 

5  Co.  Litt.  ir)7.  a. 

«  Quinebaug  Bank  v.  Leavens,  20  Conn.  87;  Georgia  Railroad  v. 
Hart,  60  Ga.  550;    Young  v.  Marine  Ins.  Co.,  1  Cranch  C.  C.  452. 

"  Jaques  V.  Com.,  10  Graft.  090. 

»  State  V.  Anthony,  7  Ired.  L.  234. 

9  State  V.  Baldwin,  80  X.  C.  390. 


§    178.]  VARIOUS  ENUMERATED  GROUNDS.  183 

an  action  against  a  sheriff  for  the  act  of  his  deputy,  the 
hitter  having  been  released  from  liability,  the  father  of 
the  deputy  was  held  to  be  a  competent  juror. ^  A  challenge 
for  such  causes,  as  observed  by  Lord  Coke,^  may  doul)t- 
less  be  made  for  favor ;  but,  when  decided  by  the  court, 
the  finding  ought  to  be  conclusive,  as  was  the  decision  of 
the  triors  at  common  law.^ 

(6.)  Mode  of  reckoning  Degrees. — It  must  be  remem- 
bered that  degrees  of  relationship  are  generally  reckoned 
according  to  the  rules  of  the  civil  law,  as  distinguished 
from  the  canon  law.  The  canon  law,  however,  was  the 
English  law  of  descent.*  Persons  were  considered  as  nearly 
related  to  each  other  as  they  were  to  their  common  an- 
cestor. As  explained  by  Blackstone,  "We  begin  at  the 
common  ancestor  and  reckon  downwards  ;  and  in  whatso- 
ever degree  the  two  persons,  or  the  most  remote  of 
them,  is  distant  from  the  common  ancestor,  that  is  the 
degree  in  which  they  are  related  to  each  other."  ^  But  in 
settling  degrees  of  relationship  in  this  country  we  are 
guided  by  our  own  law  of  descent,  and  that,  as  stated  by 
Chancellor  Kent,  is  according  to  the  rules  of  the  civil  law.'' 
By  this  law  two  persons  are  considered  related  to  each  other 
only  in  that  number  of  degrees  which  exists  between  them, 
to  be  counted  by  reckoning  from  one  up  to  their  common  an- 
cestor, and  then  down  to  the  other. ^ 

Bearing  this  rule  in  mind,  and  that  the  blood  relatives  of 
the  wife  stand  in  the  same  degree  of  aifinity  to  the  husband 
as  they  do  in  consanguinity  to  her,  the  degree  of  relation- 
ship within  which  the  juror  stands  in  any  case  to  a  party  in 
suit  becomes  a  simple  matter  of  calculation.  First  cousins 
are  related  to  each  other  in  the  fourth  degree.     Therefore,, 

1  Seavy  v.  Dearborn,  19  X.  H.  351. 

2  Snpra,  feubsec.  3. 
^  Ante,  §  152. 

4  4  Kent  Comm.  374. 

5  2  Bl.  Comm.  206. 

6  4  Kent  Comm.  412,  413. 

^  Ibid.  See  an  instructive  note  by  the  reporter  to  Hardy  v.  Sprowle,. 
32  Me.  310. 


184         GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

one  of  the  jurors,  being  a  tirst  cousin  of  the  defendant's 
Avife,  is  incompetent  under  a  statute  excluding  jurors  re- 
lated within  the  sixth  degree.^  So  is  a  juror  whose  wife's 
father  is  cousin  to  the  defendant.^  Under  the  common 
law  rule,  which  excludes  persons  within  the  ninth  degree  of 
relationship,  a  juror  is  disqualified  by  the  circumstance  that 
his  great-grandmother  and  the  grandmother  of  one  of  the 
parties  to  the  cause  w^ere  sisters.^  And  so  is  a  juror  who  has 
married  a  niece  of  one  of  the  jDarties,^  or  the  daughter  of 
the  defendant's  brother,^  On  a  criminal  trial,  a  juror 
stated,  on  his  voir  dire,  that  he  w^as  related  to  the  prisoner, 
not  so  near  as  second  cousin,  but  thought  he  might  be  a 
third  cousin.  He  was  held  to  have  been  properly  ex- 
cluded.** 

§  179.  Interest,  Public  or  Corporate. —  (!•)  Tax-Payer 
in  Municij)al  Corjwration  disqualified  at  Common  Law. — 
The  law  is  indebted  to  Lord  Mansfield  for  a  stringent 
declaration  of  the  rule  disqualifying  summoning  officers  and 
jurors  from  acting  in  a  case  where  they  are  even  remotely 
interested.  This  rule  was  laid  down  in  Hesketh  v.  Brad- 
dock,''  which  was  an  action  by  the  treasurer  of  the  city  of 
Chester,  upon  a] by-law  of  the  corporation,  against  the  de- 
fendant for  keeping  an  open  shop,  not  being  a  freeman  of 
the  city.  A  jurv  of  freemen  and  citizens  of  Chester  had 
been  summoned  b}'^  the  sheriff,  who  was  also  a  freeman 
and  citizen.  The  defendant  challenged  both  the  array  and 
the  polls.  Upon  a  writ  of  error  to  the  King's  Bench,  his 
lordship  stated  that  the  minuteness  of  the  interest  could  not 
relax  the  objection  ;  that  degrees  of  influence  could  not  be 
measured  ;  no  line  could  be  drawn  but  that  of  total  exclu- 

1  Hardy  v.  Sprowle,  32  Me.  310.  See  also  Hudspeth  v.  Herston,  G4  lud. 
133;  Rust  V.  Shackleford,47  Ga.  538;  Morrison  v.  McKiiinon,  12  Fla.  552; 
Hartford  Bank  v.  Hart,  3  Day,  4S1. 

2  Churchill  v.  Churchill,  12  Vt.  GOl. 

3  State  V.  Perry,  1  Busb.  330. 

*  Trullin^er  v.  Webb,  3  Ind.  108. 
6  Denn  v.  Clark,  1  X.  J.  L.  440. 
«  O'Connor  v.  State,  9  Fla.  215. 
'  3  Burr.  1847. 


§    179.]  VARIOUS  ENUMERATED  GROUNDS.  185 

sion  of  all  degrees  whatever.  Both  challenges  were  held, 
therefore,  to  have  been  well  taken. ^  So,  in  an  early  case  in 
New  York,^  a  qui  tarn  action,  which,  under  an  act  for  pre- 
venting usury,  gave  a  moiety  of  the  sum  to  be  recovered  to 
the  poor  of  the  town  where  the  offense  was  committed,  and 
the  other  moiety  to  the  prosecutor,  it  w^as  held  to  be  a  good 
cause  of  challenge  to  all  the  jurors  summoned,  that  they 
were  inhabitants  of  the  town  which  was  entitled  to  a 
moiety  of  the  penalty. 

In  an  action  by  or  against  a  city,  the  authorities  are  uni- 
form, where  the  rule  has  not  been  changed  by  statute,  that 
tax-payers  of  such  municipality  may  be  excluded  from  the 
jury,  by  the  court,  ex  7nero  motu,  or  upon  a  challenge  for 
this  cause,  as  being  responsible  for  or  to  be  benfited  by  a 
ratable  proportion  of  w^hatever  verdict  might  be  rendered 
for  or  against  the  city,  and  to  that  extent  pecuniarily  inter- 
ested in  the  event  of  the  suit.^ 

But  upon  the  trial  of  a  person  charged  with  burning  the 
county  jail,  citizens  of  the  county  are  competent  as  jurors. 
They  cannot  be  said  to  be  pecuniarily  interested,  since,  in 
the  event  of  conviction  or  acquittal,  they  would  have  to  con- 
tribute the  same  sum  to  the  building  of  a  new  jail.*  Nor 
are  such  citizens  disqualified  in  a  contest  in  respect  of  the 

1  See  also  Day  v.  Savadge,  Hob.  85.  Compare  Martin  v.  Eeg.,  12  Irish 
L.  399. 

2  Wood  V.  Stoddard,  2  Jolins.  194. 

;>  Garrison  v.  Portland,  2  Oreg.  123;  Boston  v.  Tileston,  11  Mass.  468; 
Hawkes  v.  Kennebeck,  7  Mass.  461 ;  Watson  v.  Tripp,  11  E.  I.  98;  s.  c,  15 
Am.  L.  Eeg.  282;  Alexandria  v.  Brockett,  1  Craueh.  C.  C.  505;  Diveny 
v.Elmira,  51  N.  Y.  507;  Hawes  Gustin,  2  Alien,  402;  State  v.  Williams, 
30  Me.  484;  Dively  v.  Cedar  Falls,  21  Iowa,  565;  Cramer  v.  Burlington, 
42  Iowa,  315;  Davenport  Gas  Company  v.  Davenport,  13  Iowa,  229;  Gib- 
son V.  Wyandotte,  20  Kan.  156;  Eberle  v.  St.  Louis  Public  Schools, 
11  Mo.  247;  Fine  v.  St.  Louis  Public  Schools,  30  Mo.  166;  Columbus  v. 
<Joetchius,  7  Ga.  139;  Eussell  v.  Hamilton,  3  111.  56;  Bailey  v.  Trum- 
bull, 31  Conn.  581;  Hearn  v.  Greensburgli,  51  Ind.  119;  Johnson  v. 
Americus,  46  Ga.  80;  Eose  v.  St.  Charles,  49  Mo.  509;  Fulweiler  v.  St. 
Louis,  61  Mo.  479.  But  contra^  see  Middletowu  v.  Ames,  7  Vt.  166; 
Omaha  v.  Olmstead,  5  Neb.  446;  s.  c,  16  Am.  L.  Eeg.  356;  Kemper  v. 
Louisville,  14  Bush,  87. 

<  Phillips  V.  State,  29  Ga.  105. 


186         GROUNDS  OF  CHALLENGE  FOR  CAUSE.    [CH.  XT. 

title  to  a  ccrtuin  piece  of  property,  deeded  by  a  defaulting 
treasurer  of  the  county  to  his  sureties  to  save  them  from 
loss,  because  the  county  is  no  party  to  the  suit.^ 

(  2. )  This  Disqualification  removed  hy  Statute. — The  New 
York  Code  of  Remedial  Justice  provides  that  "  in  a  penal  ac- 
tion in  a  court  of  record,  or  not  of  record,  to  recover  a  sum 
of  money,  it  is  not  a  good  cause  of  challenge  to  a  trial  juror, 
or  to  an  officer  who  notified  the  trial  jurors,  that  the  juroi'  or 
the  officer  is  liable  to  pay  taxes,  in  a  city,  town,  or  county 
which  may  be  benefited  by  the  recovery."  ^  A  similar  pro- 
vision is  found  iu  the  statutes  of  other  States.'*  The  statute 
of  Massachusetts  to  this  effect  has  been  decided  to  be  not  iu 
violation  of  that  provision  of  the  constitution  of  this  State, 
which  secures  to  every  citizen  "  the  right  to  be  tried  by 
judges  as  free,  impartial  and  independent,  as  the  lot  of  hu- 
manity will  admit."  ^  Other  statutes  provide  that  it  shall  be 
no  ground  of  challenge  to  a  juror  in  any  suit  in  which  the 
county,  city  or  village  is  interested,  that  he  is  a  tax  payer 
thereof ;  ^  but  some  so  provide  only  as  to  citizens  of  the 
county,  in  actions  wherein  the  county  is  interested. 

(3.)  Members  of  Private  Qoryorations. —  The  principle 
IS  also  well  settled  that,  where  a  private  corpora- 
tion is  a  party  to  a  suit,  or  immediately  interested  in  the 
question  to  be  tried,  a  member  of  the  corporate  body  can 
not  sit  as  a  juroi-  in  the  case.*'    A  stockholder  of  a  railroad 

1  Phipps  V.  Mansfield,  62  Ga.  209. 

2  §  1179. 

8  1  Bright  Pmd.  (Penn.)  Dig.,  p.  837,  §  73;  G.  S.  Mass.  1860,  ch.  132, 
§  30;  Gen.  Stut.  K.  I.  1872,  p.  434,  §  32;  Bush's  Dig.  Fla.,  ch.  104,  §  25; 
R.  S.  So.  Car.  1873,  p.  53,  §  27;  Comp.  L.  Mich.  1871,  §  6015;  R.  S.  Me. 
1871,  ch.  82,  §  76. 

^  Com.  V.  Reed,  1  Gray,  472.  See  also  Com.  v.  AVorcester,  3  Pick. 
402;  Cora.  v.  Ryan,  5  Mass.  90;  State  v.  Wells,  46  Iowa,  662. 

5  Rev.  X.  J.  1877,  p.  530,  §  39;  Comp.  L.  Mich.  1871,  §§  460,  3329; 
R.  S.  111.  1880,  eh.  24,  §  174;  /?>.,  ch.  139,  §  47;  /ft.,  ch.  34,  §  32;  R.  S.  La. 
1876,  §  2134;  Supp.  to  Ga.  Code  of  1873,  §  409;  R.  S.  W.  Va.  1879,  ch. 
33,  §  63;  R.  S.  Wis.  1878,  §  2850;  Stat,  at  J-arge,  Minn.  1873,  p.  217,  §  5; 
G.  S.  Neb.  1873,  p.  232,  §  5;  R.  S.  Mo.  1879,  §  2801;  Comp.  L.  Kan. 
1879,  §  1391. 

«Respublica  v.  Richards,  1  Yeates,  480;   Silvis  v.  Ely,  3  Watts  &  S. 


§    179.]  VARIOUS  ENUMERATED  GROUNDS.  187 

company  is  not  competent  to  sit  as  a  juror  upon  an  inquest 
impanelled  to  determine  the  necessity  of  taking  land,  and  the 
compensation  to  be  paid  to  the  owner  of  land  taken,  for  the 
use  of  the  corporation.  It  is  obviously  indecent  for  a 
juror,  so  directly  interested  in  the  conclusion  to  be  reached^ 
to  assist  in  determining  the  matter.  The  defect  of  the 
juror  is  of  so  positive  a  character,  that  if  not  discovered 
until  after  verdict,  it  vitiates  the  result.^ 

Likewise,  one  who  has  given  his  note  to  a  railroad  com- 
pany to  aid  in  the  construction  of  its  road,  is  disqualified  as 
a  juror  in  proceedings  to  condemn  land  for  its  right  of  way. 
This  is  a  disqualification  which  cannot  be  removed  by  stipu- 
lation betw^een  the  parties.'-'  But  a  person  who  was  active 
in  the  formation  of  a  company,  whose  name  even  appeared 
in  the  act  of  incorporation  and  the  list  of  subscribers  of 
stock,  but  who  in  reality  held  none,  has  been  considered  to 
be  a  competent  juror  in  an  action  brought  by  the  company.^ 

And  in  an  action  by  or  against  a  corporate  body,  it  is  no 
objection  to  the  competency  of  a  juror  that  he  is  an  officer 
of,  or  a  stockholder  in,  another  corporation  organized  f(jr 


421;  Fleeson  v.  Savage  S.  M.  Co.,  3  Nev.  157.  Compare  Williams  v. 
Smith,  6  Cow.  166.  This  was  an  action  against  the  gate-keeper  of  a 
turnpike  company  for  unlawfully  demanding  toll.  '  The  gate-keeper 
alone  was  responsible  for  the  penalty,  and  therefore  a  stockholder  of 
the  company  was  held  to  be  a  competent  juror. 

1  Peninsular  R.  Co.  v.  Howard,  20  Mich.  18.  It  was  so  held,  where  it 
appeared  that  one  of  the  jurors  Avas  a  stockholder  in  another  railroad 
corporation,  which,  at  the  time  of  the  trial,  had  a  contract  with  the  cor- 
poration taking  the  land  to  run  and  manage  both  roads,  the  joint  net 
income  to  be  divided  between  them  in  proportion  to  the  sums  expended 
in  constructing  and  completing  each.  Page  v.  Contocook  Valley  R.  Co., 
21  N.  H.  438.  But,  in  Com.  v.  Boston,  etc.  R.  Co.,  3  Cush.  25,  the  same 
persons  being  summoned  as  jurors  to  assess  the  damages  severally  sus- 
tained by  two  railroad  corporations,  for  the  taking  of  their  lands  lying 
contiguous  to  each  other,  by  a  third  railroad  corporation  for  the  road 
of  the  latter,  it  was  held  to  be  no  objection  to  the  competency  of  one 
of  the  jurors  to  sit  as  such  in  the  cause  first  tried,  that  he  was  a  stock- 
holder in  the  other  corporation  petitioning,  whose  cause  was  to  be  tried 
immediately  afterwards. 

2  Michigan,  etc.  R.  Co.  v.  Barnes,  40  Mich.  383. 

3  Portland,  etc.  Ferry  Co.  v.  Pratt,  2  Allen  (N.  B.)  17. 


188         OKOUNDS  OF  CHALLENGE  FOU  CAUSE.     [CH,  XI. 

the  same  or  a  similar  purpose.'  And  so,  where  the  corpo- 
ration is  not  even  remotely  interested  in  the  litigation,  it  is 
no  ground  of  challenge,  either  for  principal  cause  or  to  the 
favor,  that  the  plaintiff  and  the  juror  arc  both  stockholders 
in  the  same  turnpike  company. - 

It  was  held  to  l)e  no  objection  to  a  juror  upon  the  trial 
of  an  indictment  for  passing  counterfeit  money,  that  the 
bill  passed  was  a  counterfeit  of  the  Bank  of  the  State  of 
8outh  Carolina,  of  which  corjjoration  the  juror  in  question 
was  a  director.  Such  a  juror  had  no  other  interest  in  the 
prosecution  than  that  which  was  conuiion  to  all  the  citizens 
of  the  State. ^ 

In  an  action  between  the  trustees  of  different  religious 
denominations,  involving  the  right  of  possession  of  lands, 
the  members  of  each  denomination  are,  by  reason  of  inter- 
est, incompetent  to  act  as  jurors.* 

§  180.  Interest,  Private. —  (1.)  Direct  Interest  in  Result 
of  Suit. —  That  a  juror  is  interested  in  suits  similar  to  that 
which  he  is  called  upon  to  try,  or  depending  upon  the  event 
of  such  a  suit,  is  a  pointed  cause  of  disqualification.*  Thus, 
it  is  a  valid  objection  to  a  juror  upon  -i  criminal  trial,  that 
he  is  indicted  and  untried  for  an  offense  of  the  same  kind 
as  that  charged  against  the  prisoner.^  So,  in  an  action  of 
ejectment,  it  a})peared  that  one  of  the  jurors  was  the  execu- 
tor of  a  testator  to  whom  the  former  plaintiff  in  the  suit 
was  indebted.  This  plaintiff  had  died  insolvent,  and  his 
heirs  at  law  were  substituted.  Therefore,  the  land  in  ques- 
tion, if  recovered,  Avould  have  constituted  a  fund  to  be 
applied  to  the  payment  of  the  debts  of  the  deceased  iusol- 

1  Craig  V.  Fenn,  Car.  &  M.  43;  Miller  v.  Wild  Cat  Gravel  Ed.  Co., 
.rJInd.  51. 

-  Brittaiu  v.  Allen,  2  Dev.  120. 

»  Billis  V.  State,  2  McCord.  12. 

*  Cleage  v.  Hydeii,  6  lieisk.  73. 

5  Courtwright  v.  Strickler,  37  Iowa,  382;  Lord  v.  Brown,  5  Den.  345; 
Davis  V.  Allen,  11  Pi«iv.  40G;  Flagg  v.  Worcester,  8  Cush.  09;  Gardner 
v.  Lanning,  2  N.  J.  L.  651.  But  see  Com.  v.  Boston,  etc.  K.  Co., 
Z  Cush.  25. 

«  McGuire  v.  State,  37  Miss.  369. 


§    180.]  VARIOUS  ENUMERATED  GROUNDS.  189 

vent  debtor.  The  juror  was  held  to  be  interested  in  a  re- 
covery by  the  plaintiffs,  and,  therefore,  incompetent.^  It  is 
not,  however,  a  principal  cause  of  challenge  that  the  plaint- 
iff Jtas  had  against  the  juror  a  suit  like  the  one  about  to  })e 
tried,  and  involving  like  issues,  where  it  does  not  appear 
that  the  suit  is  still  pending.  At  the  most,  this  can  only 
support  a  challenge  to  the  favor, '^ 

(2.)  Contingent  Interest  an  Surety. —  It  is  obviously  a 
good  cause  of  challenge  that  a  juror  is  bound  for  the  costs 
of  the  prosecution  of  the  suit.^  In  one  case  the  court  held 
that,  having  once  had  a  direct  interest  in  the  event  of  the 
suit,  the  juror's  mind  could  not  be  so  purged  of  this  bias, 
by  a  discharge  of  his  interest,  as  to  be  qualified  to  sit  upon 
the  jury.*  So,  one  who  is  surety  for  the  appearance  of  the 
accused  to  answer  a  criminal  charge,  is  not  competent  to  sit 
upon  the  trial  of  the  iadictment.^  This  objection  was  held 
to  be  good  also  as  against  the  son-in-law  and  brother-in-law 
of  the  surety  ;  ^  but  it  was  denied  where  an  attempt  was 
made  to  apply  it  to  the  tenant  of  the  surety.^  Where  the 
juror  was  a  surety  for  one  of  the  parties  in  a  matter  un- 
connected with  the  trial,  the  result  of  which  might  affect 
the  ability  of  the  principal  to  pay,  it  was  held  to  be  a  good 

1  Smull  V.  Jones,  6  Watts.  &  S.  122.  Compare  Gratz  v.  Benner, 
13  Serg.  &  R.  110,  a  decision  wliich  it  is  difficnlt  to  understand.  For 
a  further  illustration  of  disqualification  of  an  administrator  by  reason  of 
contingent  interest  in  the  event  of  the  suit,  see  Meelier  v.  Potter,  5  N. 
J.  L.  586.  A  juror  has  been  permitted  to  release  his  interest  in  lands 
claimed  in  ejectment,  in  order  that  he  might  sit  upon  the  trial.  Isaac 
V.  Clarke.  2  Gill,  1. 

2  Austin  V.  Cox,  GO  Ga.  520. 

3  Glover  v.  Woolsey.  Dudley  (Ga.)  85. 

^  Phelps  V.  Hall.  2  Tyler  (Vt.)  401.  But,  after  verdict,  Mich  an  objec- 
tion cannot  be  raised.  "  The  part}',*'  said  Scates,  eT.,  "  will  not  be  al- 
lowed to  allege,  as  a  surprise  and  a  ground  for  a  new-  trial,  that  he  was 
ignorant  in  fact  of  the  pleadings  and  files  in  the  case."  Bradshaw  v. 
Hubbard,  G  III.  390,  394. 

s  Brazleton  v.  State,  11  Reporter,  291 ;  People  v.  McCollister,  1 
Wheeler  C.  C.  391;  Anderson  v.  State,  63  Ga.  675. 

^  Sehorn  v.  Williams,  6  Jones  L.  575;  Woodbridge  v.  Raymond, 
Kirby,  279. 

7  Brown  v.  Wheeler.  18  Conn.  199. 


11)0         GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

<.'ause  of  challenge,  especially  when  tlic  juror  himself  de- 
clared that  by  reason  of  this  circumstance  he  did  not  con- 
sider that  he  was  a  fit  juror  to  sit  in  the  case.^ 

§  181.  Meml>ersliii)  iii  Assoeiatioiis  for  the  Suppression 
of  Crime,  etc. —  It  is  quite  clear  that  a  i)rejudice  against  a 
particular  crime  will  not  disqualify  a  juror  from  sitting  upon 
the  trial  of  such  an  offense.'-  But  how  is  it  in  relation  to 
members  of  an  association,  who  combine  for  the  suppres- 
sion of  such  crime?  Associations  of  this  sort  uniformly  re- 
quire funds  for  their  support,  which,  from  time  to  time,  are 
contributed  by  the  menil>ers.  The  few  decisions  regarding 
the  competency  of  such  members  do  not  leave  the  matter 
in  satisfactory  shape.  In  Commonweal  tit  v.  Livermore^^ 
Metcalf,  J.,  delivering  the  opinion  of  the  court,  said: 
^'  We  deem  it  to  be  our  dutjs  however,  to  say  that,  in  our 
judgment,  the  members  of  any  association  of  men,  com- 
bining for  the  purpose  of  enforcing  or  withstanding  the 
execution  of  a  particular  law,  and  binding  themselves  to 
contribute  money  for  such  purpose,  cannot  be  held  to  be 
indifferent,  and  therefore  ought  not  to  be  permitted  to  sit 
tis  jurors,  in  the  trial  of  a  cause  in  which  the  question  is 
whether  the  defendant  shall  be  found  guilty  of  violating 
that  law."  * 

In  a  later  case  it  was  held  by  the  same  court  that  it  did 
not,  per  se,  disqualify  a  juror  that  he  was  a  member  of  an 
association  for  the  suppression  of  the  offense  which  was  then 
ui)on  trial ;  nor  that,  for  the  purposes  of  the  association,  he 

^Ferriday  v.  Selser,  4  How.  (Miss.)  506. 

2  United  States  v.  Hanway,  2  Wall.  Jr.  139 ;  Williams  v.  State,  3  Ga, 
453 :  Davis  v.  Hunter,  7  Ala.  135. 

3  4  Gray,  18. 

*  Ibid.  p.  20.  (See  also  Keg.  v.  Nicholson,  8  Dowl.  P.  C  422;  s.  c.,  4 
Jur.  558.)  The  juror  in  this  case  was  not  excluded,  but  why,  it  is  diffi- 
cult to  understand,  as  his  testimony  showed  him  to  be  directlj^  within 
the  rule  stated.  In  State  v.  Wilson,  8  Iowa,  407,  the  court  very  briefly 
decided  that  membership  in  an  association  for  the  pi-osecution  of  per- 
sons arrested  for  horse-stealing  did  not  disqualify  a  juror  on  the  trial  of 
one  indicted  for  this  offense.  But  this  conclusion  seems  to  have  been 
based  upon  the  theory  that  the  causes  of  challenge  enumerated  in  the 
statute  were  exclusive  of  all  others. 


§    181.]  VARIOUS  ENUMERATED  GROUNDS.  191 

had  paid  the  full  amount  of  his  subscription  before  the 
commencement  of  the  prosecution.^  The  court,  however, 
seemed  to  consider  that,  if  the  juror  was  under  an  obliga- 
on  subsequentl}^  to  contribute  towards  the  expenses  of  the 
prosecution,  he  might  be  regarded  as  having  a  pecuniary  in- 
terest in  the  event  of  the  suit.^  But  a  decision  of  the  Su- 
preme Court  of  Illinois  makes  no  such  distinction.^  A 
recent  decision  by  the  Supreme  Court  of  Colorado  reviews 

i  Com.  V.  O'Neil,  6  Gray,  343.  See  also  United  States  v.  Borger  (U. 
S.  Cir.  Ct.  So.  Dist.  X.  Y.,  May,  1881,  Blatchford,  J.),  7  Fed.  Rep. 
193;  s.  c,  12  Reporter,  134.  In  Proffatt  ou  Jury  Trial,  §  169,  Com, 
V.  CNeil  is  relied  upon  as  authority  for  tlie  statement  that  members  of 
these  associations  are  not  incompetent  when  they  have  7iot  paid  in  their 
subscriptions.  The  mistake,  however,  is  not  unnatural.  If  a  member 
of  such  an  association  is  disqualified  at  any  time,  it  would  seem  equally 
reasonable  to  hold  that  he  is  so  after  a  payment  of  money  to  the  associa- 
tion, as  bj^  the  fact  that  he  is  bound  to  make  a  future  payment.  Com- 
pare Mylock  V.  Saladine,  1  W.  Bl.  480;  People  v.  Lee,  5  Cal.  353;  Peo- 
ple V.  Graham,  21  Cal.  261. 

2  Com.  V.  O'Neil,  6  Gray,  343.  One  of  a  committee  who,  without  a 
warrant,  arrested  a  person  accused  of  arson,  and  kept  him  in  custody 
ten  days,  is  not  competent  to  sit  upon  the  trial  of  the  prisoner,  especially 
where  it  is  shown  that  the  members  of  the  committee  have  agreed  to 
indemnify  each  other  against  an}^  prosecution  which  the  accused  might 
institute  for  an  unlawful  imprisonment.  Fleming  v.  State  lllnd.  234; 
Pierson  v.  State.  11  Ind.  341. 

^Musick  V.  People,  40  111.  268.  "In  one  sense,"  said  Chief  Justice 
Walker,  "  all  pei'sons  living  under  a  civilized  form  of  government  are 
members  of  such  an  association.  The  very  object  of  all  government  is 
to  protect  individuals  in  their  rights,  and  to  punish  persons  who  invade 
such  rights.  And  every  citizen  who  pays  a  tax  contributes  money  to 
aid  in  convicting  persons  guilty  of  crime."  In  Missouri,  etc.  R.  Co.  v, 
Munkers,  11  Kan.  223,  an  action  to  recover  the  value  of  services  in  load- 
ing and  unloading  cattle,  two  jurors  answered  in  the  negative  the  ques- 
tion on  the  voir  dire,  "  Have  you  been,  or  are  you  interested  in  any  action 
pending  against  the  defendant?  "  This  answer  was  held  to  be  correct, 
although  these  jurors  were  subscribers  to  a  fund  raised  for  the  support 
of  a  suit  contesting  the  validity  of  certain  bonds  issued  to  the  defendant, 
which  suit  was  prosecuted  by  other  citizens  of  the  county,  against  the 
county  authorities,  in  the  form  of  an  action  to  restrain  the  latter  from 
collecting  taxes  levied  for  the  payment  of  the  interest  and  principal  of 
the  bonds  in  question.  Neither  the  jurors  nor  tlie  railway  company 
were  parties  of  record  in  this  suit,  and  hence  the  former  were  held  not 
subject  to  challenge,  under  the  Kansas  statute,  which  provides,  as  one  of 
the  principal  causes  of  challenge,  that  a  juror  "  has  an  action  pending 
between  him  and  either  party."    G.  S.  Kan.  1868,  p.  680,  §  270. 


192  (illOUNDS  OF  CHALLENGE  FOR  CAUSE.  [CH.  XI. 

tho  authorities,  and  docidcs  merely  that  ineinl)ership  of  an 
tissoeiation  combined  to  check  a  certain  crime  does  not, 
per  fte,  disqualify  jurors  upon  the  trial  of  such  crime.^ 

Upon  the  whole,  the  hmguage  of  Metcalf,  J.,  pre- 
viously cited,  seems  not  to  be  supported  by  the  subsequent 
authorities  ;  and,  on  principle,  it  can  hardly  be  said  that  a 
member  of  an  association  of  this  character  has  a  greater 
pecuniary  interest  in  the  conviction  of  an  offender  after  he 
has  paid  his  contribution  than  before  he  has  done  so.  Crime 
is  obnoxious  to  every  good  citizen.  The  law  recognizes  this 
fact,  and,  regardless  of  prejudices  in  the  abstract,  holds 
the  juror  to  be  competent.  A  zealous  sentiment  for  the 
enforcement  of  the  law  may  properly  dictate  the  contribu- 
tion of  private  means  to  this  end,  and,  whether  the  contri- 
bution be  past  or  prospective,  may  be  totally  disassociated 
from  an  unreasonable  prejudice  against  an  accused  person.'^ 

§  182.  Membership  in  Benevolent  Associations. —  On 
one  occasion  the  Supreme  Court  of  North  Carolina  consid- 
ered it  to  be  a  good  ground  of  challenge  that  the  plaintiff 
and  one  called  as  a  juror  were  members  of  an  association 
imposing  personal  obligations  upon  its  members  —  obliga- 
tions arising  from  benevolence  and  good  will  towards  each 
other,  as  distinct  from  a  mere  partial  union  of  funds  for 
profit.^  This  opinion,  however,  was  outside  of  the  facts  of 
the  case  in  judgment.  The  point  was  decided,  contrary  to 
this  intimation,  by  the  Supreme  Court  of  New  York,  upon  a 
challenge  to  a  freemason,  one  of  the   parties  to  the  suit 

'Boyle  V.  People,  4  Colo.  176.  In  this  case  the  court  state  that 
'•  nothing  was  elicited  to  show  that  the  jurors  had  agreed  to  contribute 
anything  toward  the  expense  of  the  prosecution,  nor  that  they  were 
liable  or  bound  in  any  way  to  such  contribution,  or  were  affected  by  any 
pecuniary  interest  whatever  in  the  case,  present  or  future." 

2  The  refusal  of  the  judge  to  ask  persons  summoned  as  jurors  whether 
they  belong  to  any  association  formed  for  the  purpose  of  enforcing  the 
law  under  which  the  defendant  is  indicted,  is  no  ground  of  exception, 
if  the  defendant's  counsel  disclaims  any  knowledge  or  suspicion  of  such 
connection,  and  assigns  no  ground  for  making  the  request.  Com.  v. 
Thrasher,  11  Gray.  .55;  Reg.  v. Stewart,  1  Cox  C.  C.  174.  Contra,  Lavin 
V.  People,  69  111.  303. 

3  BrittaiR  V.  Allen,  2  Dev.  120. 


§  183.]        VARIOUS  ENUMERATED  GROUNDS.  193 

being  also  a  member  of  this  fraternity.^  Chief  Justice 
Savage  considered  that  the  oath  of  a  master  mason,  as  set 
forth  in  the  challenge,  enjoined  only  duties  of  benevolence 
iind  charity,  and  contained  no  evidence  of  bias  or  partiality 
in  favor  of  brethren,  or  prejudice  against  others  in  matters 
of  litigation.^  For  the  same  reason,  in  an  action  by  the 
Grand  Lodge  of  this  order  in  one  State,  two  members  of 
subordinate  lodges,  established  under  the  authority  of  the 
Grand  Lodge,  were  held  not  to  be  obnoxious  to  the  charge 
of  interest  in  the  event  of  the  suit.^ 

§  183.  Prior  Service. —  (1.)  In  General  —  Statutes 
against  Professional  Jurors. —  Statutes  are  found  in  many 
States,  designed  to  exclude  professional  jurors,  or  to  relieve 
the  citizen  from  too  frequent  demands  to  serve  as  a  juror. 
Many  of  these  expressly  provide  that  the  fact  of  service 
within  a  given  period,  either  as  a  meml)er  of  the  regular 
panel  or  as  a  talesman,  shall  constitute  a  cause  of  challenge.'* 
Thus,  a  statute  of  Michigan  provides  that  "it  shall  be  a 
good  cause  of  challenge  to  any  juror  in  any  court  of  record 
in  this  State,  in  addition  to  the  other  causes  of  challenge 
allowed  by  law,  that  such  person  has  served  as  a  juror  upon 
the  regular  panel,  or  as  a  talesman,  in  such  court,  at  any 
time  within  one  year  previous  to  such  challenge."  ^ 

1  Purple  V.  Horton,  13  Wend.  11. 

2  7frtd.,  p.  23. 

3  Burdine  v.  Grand  Lodge,  37  Ala.  478. 

4  Brooks  V.  Bruyn,  35  111.  392;  Bissell  v.  Ryan,  23  111.  566;  Barker  v. 
Hiue,  54  Ind.  542;  Christie  v.  State,  44  Ind.  408;  Kassebaum  v.  State, 
45  Ind.  277;  Demaree  v.  State,  45  Ind.  299:  Williams  v.  State, 
45  Ind. 299. 

6  Sess.  Laws  Mich.  1860,  p.  106,  §  3.  Under  this  statute,  a  foolish  ob- 
jection was  interposed  in  one  case,  that  one  of  the  regular  panel  sum- 
moned for  the  term  was  subject  to  challenge,  in  subsequent  cases  at  the 
same  term,  after  having  rendered  one  verdict.  Of  course,  this  objection 
was  not  sustained.  Service  for  the  term  npon  the  regular  panel  is 
necessary  to  constitute  a  cause  of  challenge,  according  to  the  clear  im- 
port of  the  statute.  Burden  v.  People,  26  Mich.  162.  In  a  statute 
making  it  a  cause  of  challenge  that  the  juror  has  "  served  for  one  week 
in  the  district  court  within  six  months  preceding,  or  in  the  county  court 
within  three  months  preceding^''''  the  word  "preceding"  has  reference 
to  a  prior  terra  of  com-t.    A  previous  week's  jury-service  during  the 

(13) 


104  GIU)I'NDS  OF  CHALLENGE  FOR  CAUSE.  [CIF.  XI. 

The  fact  that  one  was  within  the  prescribed  time  drawn 
and  summoned  on  a  special  venire,  hut  did  not  serve 
upon  the  trial  of  the  case,  constitutes  no  objection  to  his 
subsequent  service  within  the  time  limited  by  statute.^  A 
statute,  however,  which  provides  that  "any  i)erson  who 
shall  have  served  once  already  on  a  jury  as  a  talesman  in 
the  trial  of  any  cause  in  the  same  court  during  the  term, 
maybe  challenged  for  such  cause,"  ^  etc.,  was  held  to  ex- 
clude a  person  called  as  a  talesman  who  had  already  served 
as  a  tales  juror  at  the  same  term,  so  far  that  he  had  been 
sworn  and  heard  all  the  evidence  in  the  case,  although  the 
case  was  then  compromised  and  the  jury  discharged  with- 
out rendering  a  verdict.^ 

(2.)  Ill  the  same  or  a  similar  Vase. —  At  common  law, 
if  persons  jointly  indicted  severed  upon  their  trial,  the  cir- 
cumstance that  certain  jurors  found  some  of  the  defendants 
guilty  did  not  operate  as  an  objection  to  their  competency 
upon  the  trial  of  the  others  ;  for,  as  stated  in  the  resolution 
of  the  judges  upon  the  trial  of  the  Regicides,  "though 
they  are  all  indicted  in  the  same  indictment  for  the  same 
offense,  yet  in  the  law  it  is  a  several  indictment  against 
every  one  of  them,  and  the  crime  is  several,  and  one  may 
be  guilty  and  not  another ;  and  the  jury  are  to  give  their 
verdict  upon  particular  evidence,  against  every  several  per- 
son, and  therefore  the  finding  one  guilty  is  no  argument  or 
presumption  that  those  jurors  will  find  another  guilty."  * 

However,  a  juror  who  had  once  given  a  verdict  in  a  case 
was  earl}"^  regarded  as  disqualified  for  service  in  the  same  case 

pending  term  is  not  a  cause  of  challenge.  Garcia  v.  State,  5  Tex.  App. 
337;  Tuttle  v.  State,  6  Tex.  App.  55(5;  Myers  v.  State,  7  Tex.  App.  640; 
Etheridge  v.  State,  8  Tex.  App.  133. 

1  State  V.  Thorne,  81  N.  C  555.  See  Prov.  Inst.  v.  Burnham,  128 
Mass.  458;  Texas  cases  cited  supra. 

2  4  Curvven,  (Ohio)  Stat.,  §  3180. 

3  Famulener  v.  Anderson,  15  Ohio  St.  473. 

*  5  How.  St.  Tr.  978  (Resolution  7)  ;  s.  c,  Sir  .J.  Kelyng,  9.  See  also 
Cranburne's  Trial,  13  How.  St.  Tr.  222,235;  Thomas  v.  State,  36  Tex. 
315;  Bowman  v.  State,  41  Tex.  417;  United  States  v.  Wilson,  Bald- 
win, C.  C.  84;  Rex  v.  Hanly,  1  Craw.  &  Dix  Cir.  (Irish)  188,  note. 


§  183.]       VARIOUS  ENUMERATED  GROUNDS.  195 

upon  a  subsequent  trial. ^  Members  of  a  panel,  which  have 
found  the  defendant  guilty  upon  an  indictment,  are  not  by 
this  circumstance  incapacitated  to  sit  upon  the  trial  of 
another  indictment  of  the  same  defendant  at  the  same  term, 
althoucrh  for  a  similar  offense.^ 

Members  of  the  panel  which,  in  a  previous  suit  of  the 
same  kind  brought  by  the  same  plaintiff  at  the  same  term, 
but  against  other  defendants,  returned  a  verdict  for  the 
plaintiff,  are  not  for  this  reason  to  be  excluded  upon  the 
objection  of  the  defendant  in  another  suit.^  Not  so,  how- 
ever, where  the  cause  involves  the  same  questions  tried  pre- 
viously, and  which  are  to  be  determined  upon  the  same  evi- 
dence.* It  has  also  been  held  that  after  a  juror  has  been  reg- 
ularly sworn  and  impanelled,  the  fact  that  he  was  a  juror  in  a 
previous  trial  of  the  same  cause,  in  which  no  verdict  was 
rendered  by  the  jury,  either  because  a  verdict  was  ordered 
])y  the  court,  or  because  the  jury  could  not  agree,  furnishes 
no  ground  of  objection  at  this  stage  of  the  proceedings.^ 
But  under  a  statute  prescribing  as  a  disqualification  that 
one  "  has  formerly  been  a  juror  in  the  same  cause,"  it  was 
held  to  be  sufficient  to  exclude  a  juror  upon  a  subsequent 
trial,  that  he  had  been  one  of  a  jury  before  which  the  case 
had  been  formerly  partially  tried,  a  portion  of  the  evi- 
dence having  been  heard.®  The  Revised  Statutes  of  Texas, 
enumerating  the  persons  disqualified  to  sit  as  jurors  in  par- 
ticular cases,  mention  "  any  person  who  has  sat  as  a  petit 
juror  in  a  former  trial  of  the  same  case,  or  of  another  case 
involving  the  same  questions  of  fact."  ^   This  has  been  con- 

1  Co.  Litt.  157.  b. ;  Argent  v.  Darrell,  2  Salk.  648. 

'^  United  States  v.  Watkins,  3  Cranch,  C.  C.  578;  Com.  v.  Hill,  4  Allen, 
591. 

3  Dew  V.  McDivitt,  31  Ohio  St.  139;  s.  c,  17  Am.  L.  Keg.  621 ;  Algier 
V.  Steamer  Maria,  14  Cal.  167;  Nugent  v.  Treiiagnier,  2  Martin,  205; 
Smith  V.  Wagenseller,  21  Pa.  St.  491. 

*  Spear  v.  Spencer,  1  G.  Greene,  534;  Garthwaite  v.  Tatum,  21  Ark. 
336.     But  see  Sheppard  v.  Cook,  2  Hay.  (N.  C.)  238. 

»  Whitner  v.  Hamlin,  12  Fla.  18;  Atkinson  v.  Allen,  12  Vt.  619. 

«  Weeks  v.  Medler,  20  Kan.  67. 

">  Sec.  3012,  subdiv.  5. 


196         GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

sti'ucd  as  applical)lc  to  criminal  as  well  as  civil  cases, 
althonirh  the  Code  of  L'riminal  Procedure  declares  simply 
that  it  is  a  ground  of  disqualification  that  a  juror  "  has 
served  on  a  petit  jury  in  a  former  trial  of  the  same  case."  ^ 
The  former  is  a  part  of  a  more  recent  enactment  which  is 
regarded  as  a  revision  of  the  previous  jur}'  law,  in  the  main, 
and,  unless  otherwise  provided,  as  relating  to  both  civil  and 
criminal  cases. ^ 

A  section  of  the  Iowa  Revision  of  1800,  specified  as  one 
of  the  causes  of  challenge  for  "implied  bias,"  "having 
served  on  a  trial  jury,  which  has  tried  another  defendant 
for  the  offense  charged  in  the  indictment."^  This  pro- 
vision was  construed  as  having  reference  to  cases  where  two 
or  more  persons  had  been  jointly  indicted  for  the  same 
offense  and  had  severed  in  their  trial,  and  not  to  cases  of 
persons  charged  with  the  same  kind  of  offense  in  different 
indictments.* 

§  184,  Landlord  and  Tenant. —  It  has  always  been  held 
to  be  a  good  ground  of  challenge  for  principal  cause  that 
the  juror  is  a  tenant  of  one  of  the  parties  to  the  suit.*  But 
that  a  party  to  the  suit  is  a  tenant  of  the  juror,  is  ground 
for  a  challenge  to  the  favor  only.*'  The  disqualification 
incident  to  the  relation  of  landlord  and  tenant  continues, 
although  the  landlord's  right  to  distrain  for  rent  may  have 
been  abolished.'  There  is  no  such  relation  existing  between 
an  innkeeper  and  his  guest  as  will  afford  a  ground  for  a 

J  Sec.  636. 

2  Dunn  V.  State,  7  Tex.  App.  600;  Jacobs  v.  State,  9  Tex.  App.  278; 
Willis  V.  State,  0  Tex.  App.  297. 

3  Rev.  of  1860,  §4771. 

^  State  V.  Sheeley,  15  lovva^  404;  State  v.  Leiclit,  17  Iowa,  28. 

*  Co.  Litt.  1.57.  a.;  Bac.  Abr.  Juries  E.  343;  Anon.,  2  Dyer,  176.  a.  pi. 
(27);  Pipher  v.  Lodge,  16  Serg.  &  K.  214;  Harrisburg  Bank  v.  Foster, 
8  Watts,  304.  But  this  relationship  was  held  not  to  afford  a  ground  of 
objection  where  the  juror  was  tenant  of  a  nobleman,  not  a  party  to  the 
suit,  but  whose  interest  was  supposed  to  be  affected.  Marsh  v.  Cop- 
pock,  9  Car.  &  P.  480.  A  juror  who  is  the  tenant  of  a  bondsman  for  the 
prosecution  of  the  suit  is  not  disqualified  upon  the  trial  of  the  case. 
Brown  v.  Wheeler,  18  Conn.  199. 

«  People  V.  Bodine,  1  Den.  306. 

"  Hathaway  v.  Helmer,  25  Barb.  29. 


§   186.]  VARIOUS  ENUMERATED  GROUNDS.  197 

challenge,  propter  affectum,  to  the  guest  hi  a  case  where 
the  innkeeper  is  a  party. ^ 

§  185.  Business  Relations  —  Employer  and  Employed. — 

A  person  sustaining  close  business  relations  with  either  of 
the  parties  is  incompetent  to  sit  in  a  case  —  for  example,  a 
partner  in  business  with  one  of  the  parties.'^  The  clerk  of 
one  of  the  parties  to  a  civil  suit  is  disqualitied  as  a  juror 
therein.^  But  the  fact  that  one  is  in  the  employment  of  a 
stockholder  does  not  disqualify  him  from  serving  as  a 
special  juror  in  a  case  to  which  the  corporation  is  a  party.* 
An  employee  of  a  railroad  company  is  not  a  competent 
juror  to  try  a  case  in  which  the  company  employing  him  is 
a  party .^  '*The  power  of  employer  over  employee,"  said 
Jackson,  J.,  "is  that  of  him  who  clothes  and  feeds  over  him 
who  is  fed  and  clothed.  Hence  the  common  law  excluded 
all  servants,  and  our  statutes  have  nowhere  altered  the  rule, 
and  it  should  not  be  altered.  A  close  relative  is  a  less  dan- 
gerous juror,  if  not  a  dependent  kinsman,  than  one  who  is 
dependent  on  his  employer."  ^ 

§  186.  Previous  Misconduct  as  a  Juror. —  When  it  is 
shown  that  a  juror  grossly  misbehaved  himself  upon  a  for- 
mer occasion,  as  by  declaring  that  he  had  tried  to  acquit 
every  one  whom  the  judge  desired  to  convict ;  and  further, 
that  he  '■'  would  as  lief  swear  on  a  spelling  book  as  a  bible, 
because  he  was  a  Tom  Paine  man," —  this  is  a  good  ground  of 
challenge.  "  It  would  destrov  all  confidence  in  the  admin- 
istration  of  justice,"  said  Black,  C.  J.,  "if  the  most  im- 
portant criminal  causes  should  have  to  be  submitted  to  men 
who  avow  themselves  reckless  of  both  human  and  divine 
laws."' 

J  Ouminings  v.  Ganu,  52  Pa.  St.  484. 

2  Stumm  V.  Hummel,  39  Iowa,  478. 

2  Hubbard  v.  Rutledge,  57  Miss.  7. 

*  Fredericktou  Boom  Co.  v.  McPherson,  2  Haniiay  (N.  B.)  8. 

5  Central  E.  Co.  v.  Mitchell,  63  Ga.  173. 

6  Ibid.    See  Co.  Litt.  157.  b. ;  Gilb.  Hist.  C  P.  95;  3  Bl.  Com.  363 ;  Bae. 
Abr.  Juries  E. ;  2  Tidd  Pr.  853. 

^  McFaddeu  v.  Com.,  23  Pa.  St.  12, 17.     At  nisi  prius,  however,  it  was 
ruled  by  Coleridge,  J.,  to  be  no  ground  for  a  challenge,  that  th.."  juror 


1K8         GROUNDS  OF  CHALLENGE  FOR  CAUSE.    [CH.  XI, 

§  \^7.   Party  to   another    Suit  at  same  Term. —  It  has 

been  made  a  statutory  cause  of  challenge  tiiat  a  juror  has  a 
suit  pending  for  trial  at  the  term  of  court  for  which  he  has 
been  summoned  as  a  juror. ^ 


ARTICLE   11. —  Bias,  Prejudice,  or  Opinion. 

Section. 

191.  Prejudice  and  Bias  distinguished. 

192.  No  Presumption  of  Bias  after  Peremptory  Cliallenge. 

193.  Prejudice  against  the  Crime  charged. 

194.  Prejudice  arising  otherwise. 

195.  Prejudice  against  a  Party's  Occupation. 

196.  Prejudice  against  a  Party's  Nationality. 

197.  Prejudice  against  the  Character  of  tiie  Accused. 

198.  Belief  that  the  Accused  is  Innocent. 

199.  A  Feeling  of  Lenity. 

200.  The  .Juror  unwilling  to  trust  himself. 

201.  A  Preference  in  Case  the  Evidence  is  equally  balanced. 

202.  Conscientious  Scruples  or  Opinions  against  Capital  Punishment. 

203.  Opposition  to  Capital  Punishment  ujjon  Political  Grounds. 

204.  Opinion  upon  the  Subject-matter  of  a  Civil  or  Criminal  Case. 
20.5.  (Continued.)     A  Ground  of  Challenge  for  Principal  Cause  or  to 

the  Favor. 

206.  Formation  without  Expression  of  Opinion. 

207.  Opinions  which  do  not  disqualify. 

(1.)  Lord  Mansfield's  Standard  of  Impartiality  now  Imprac- 
ticable. 

(2.)  The  Rule  as  declared  by  Chief  .Justice  Marshall,  the 
settled  Law. 

(3.)  This  rule  to  be  guardedly  applied. 

208.  An  Hypothetical  Opinion. 

209.  Impression  —  Meaning  of  this  Teim. 

210.  Particular  Expressions  of    Oi>inion    not  affecting   the  Juror's 

Competency. 

211.  Nature  of  Disqualifying  Opinion. 

had  .sat  on  several  cases  during  the  assize,  and  in  no  instance  had  con- 
sented to  a  verdict  for  the  crown.  Sawdon's  Case,  2  Lewin.  C.  C.  117. 
Nor  that,  in  a  previous  case,  the  juror  had  shown  some  dissatisfaction 
with  the  law  as  laid  down  by  the  judge  in  favor  of  thechalleuging  party. 
Pearse  v.  Rogers,  2  Fos.  &Fin.  137. 
'  Riley  v.  Bussell,  1  Heisk.  294;  Plummer  v.  People    74  111.  361. 


§    191.]  BIAS,  PREJUDICE,  OR  OPINION.  199 

212.  An  UiKinalified  Opiuion. 

213.  Opinion  derived  from  an  Authentic  Source. 

214.  Opinion  based  upon  Reports  of  the  Testimony  of  Witnesses. 

215.  Opinion  whicli  may  be  removed  by  Evidence. 

216.  Opinion  based  upon  Personal  Knovi'led^e. 

217.  Opinion  upon  Particular  Facts  involved  in  the  Issue. 

218.  Opinion  embodying  a  Conclusion  of  Law. 

219.  Disqualifying  Effect  of,  when  Indicative  of  Bias. 

220.  A  Disqualifying  Opinion  cannot  be  laid  aside. 

221.  A' Change  of  Opinion. 

222.  The  Disqualification  arising  from  a  Preconceived  Opinion  re- 

moved by  Statute. 

223.  Constitutionality  of  the  New  York  Statute  of  1872. 

224.  Construction  of  this  Statute. 

§  191.  Prejudice  and  Bias  distingiiislied. —  A  preju- 
dice has  been  said  to  be  in  some  sense  an  opinion.^  It  is 
a  prejudgment  of  the  case,  and,  as  such,  in  the  eye  of  the 
hiw,  has  no  degrees.^  Perhaps  it  would  be  more  accurate 
to  say  (what  further  appears  in  the  cases  cited)  that 
"  prejudice  "  or  "  prejudgment  "  signifies  a  *'  fixed,"  "  set- 
tled," or  "absolute"  opinion,  as  distinguished  from  an 
opinion  casually  formed.^  Thus,  the  language  of  the  court 
in  an  early  case  is  as  follows:  "  J^rejudging  and  giving 
an  opinion  on  the  statement  of  certain  facts  are  very  dif- 
ferent things.  The  first  implies  a  strong  disposition  to  favor 
the  one  side  or  the  other,  —  a  determination  to  find  in  one 
way,  let  the  evidence  be  what  it  will.  The  last  involves 
the  truth  of  certain  facts  and  propositions  in  the  sentiments 
delivered ;  and  impressions  thus  made  may  be  effaced  by 
the  production  of  other  evidence."  * 

The  popular  meaning  of  the  term  "prejudice"  is 
probably  something  more  than  sim^jle  prejudgment.  It  is 
frequently  considered  as  involving  some  grudge  or  ill-will, 
as  well  as  a  preconceived  opinion.  And  this  is  probably 
the  meaning  which  most  jurors  attach  to  the  term.     Hence 

1  Cora.  v.  Webster,  5  Cush.  297;  Winnesheik  Ins.  Co.  v.  Schueller,  60 
111.  473. 

2  People  v.  Reyes,  5  Cal.  347,  349. 

3  Willis  v.  State,  12  Ga.  444,  448. 

•*  McCausland  v.  McCausland,  1  Yeates,  372,  378. 


200        GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XK 

it  is,  that  although  they  may  have  formed  decided  opinions, 
yet  entertaininu-  no  irrudij^e  towards  a  prisoner,  and  feeling- 
no  ill-will  towards  him,  they  answer  that  there  is  no  preju- 
dice resting  on  their  minds. ^ 

Bias,  on  the  other  hand,  has  been  defined  to  be  <'  a  ])ar- 
ticular  influential  power,  which  sways  the  judgment;  the 
inclination  of  the  mind  towards  a  i)articular  object."^ 
This  term,  where  it  occurs  in  statutes,  suggests  another 
and  somewhat  different  ground  of  disqualification  from  what 
is  indicated  by  the  term  "prejudice."  A  man  cannot  be 
prejudiced  against  another  without  being  biased  against 
him  ;  but  he  may  be  biased  without  being  prejudiced.^ 

§  192.  Xo  Presumption  of  Bias  after  a  Peremptory 
Challenge. —  It  is  not  a  good  cause  of  challenge  to  a  juror 
that,  upon  a  previous  trial  of  the  same  case,  he  was  peremp- 
torily challenged  by  the  party  now  challenging,  unless  it 
can  be  shown  that,  by  reason  of  such  peremptory  challenge, 
the  juror  evinced  a  bias  towards  the  challenging  party.*  It 
is  obvious,  then,  that  a  juror  cannot  be  challenged  for  bias 
supposed  to  arise  from  the  fact  that  he  had  been  previously 
challenged  peremptorily,  upon  the  trial  of  another  person 
concerned  in  the  same  crime  with  which  the  challenging 
party  is  charged.'* 

§  193.  Prejudice  against  the  Crime  charged. —  A  prej- 
udice entertained  by  a  juror  against  a  particular  crime  will 
not  constitute  a  ground  of  challenge  against  such  juror, 
when  called  to  try  an  indictment  for  such  offense,*'  nor  will 
it    in  a  civil  case  irrowino-  out  of  such   criminal    act."     A 


1  Willis  V.  State,  12  Ga.  444,  448.  per  Nisbet,  .J. 

2  Bouv.  L.  Die. 

3  Willis  V.  State,  supra. 

*  Wilson  V.  State,  3  Tex.  App.  63;  Com.  v.  HailsLoek.  2  Gnitt.  ."iW. 

5  Cargen  v.  People,  39  Mich.  549. 

«  United  States  v.  Hanway,  2  Wall.  Jr.  139;  Williams  v.  State,  3  Ga. 
453;  Parker  v.  State,  34  Ga.  262;  United  States  v.  Noelke,  17  Blateh. 
554;  s.  c,  1  Fed.  Rep.  426;  9  Reporter,  50.i. 

'  Davis  V.  Hunter,  7  Ala.  135.  In  an  action  for  the  killing  of  sheep  by 
dogs,  a  juror  who  said  that  he  had  such  a  bias  or  prejudice  about  the  mat- 
ter of  dogs  killing  sheep  as  would  interfere  with  his  impartial  judgment  m 


§  195.]  BIAS,  prp:judice,  or  opinion.  201 

prejudice  against  a  person  who  is  engaged  in  a  business 
prohibited  by  law,  arising  solely  from  the  fact  of  his  being 
engaged  in  such  business,  is  no  more  than  a  prejudice 
against  the  crime  involved  in  being  engao-ed  in  the  business.^ 

§  194.  Prejudice  arising-  otherwise. —  It  is  error  for  the 
court,  upon  the  trial  of  a  challenge,  to  disregard  all  kinds  of 
hostility  between  the  juror  and  the  party  challenging,  except- 
ing that  relating  to  the  particular  cause  upon  trial.  The 
juror  should  be  impartial  in  all  respects.  Causes  apparently 
slight  are  good  causes  of  challenge.  Thus,  at  common 
law,  a  good  cause  of  challenge  to  the  array  was  that  an 
action  which  implies  malice  is  depending  between  the 
sheriff  and  the  party  challenging.  From  any  similar  cause 
the  law  implies  a  want  of  indifference  as  between  a  party 
and  the  individual  juror. ^ 

§  195.  Prejudice  against  a  Party's  Occupation. —  The 
fact  that  the  juror  is  prejudiced  against  the  business  of  the 
party,  but  not  against  him,  is  not  a  sufficient  ground  of 
challenge  for  principal  cause. ^  But,  in  a  case  growing  out 
of  the  exercise  of  an  obnoxious  calling,  a  juror's  prejudices, 
although  nominally  directed  against  the  calling  itself,  may 
indicate  a  strong  feeling  against  the  person  engaged  therein. 
Thus,  in  an  action  against  a  liquor-seller,  under  a  statute 
giving  damages  under  certain  circumstances  to  a  wife  for  the 
sale  of  intoxicating  liquor  to  her  husband,  one  juror  stated 
upon  his  voir  dire  that  he  considered  the  business  of  selling 
and  manufacturing  lager  beer  a  perfect  nuisance,  a  curse  to 
the  community,  and  would  do  all  in  his  power,  except  rais- 
ing mobs,  to  break  up  the  sale  of  it.  The  Supreme  Court 
of  Illinois  was  of  opinion  that  a  man  who  would  stop  short 
of  mob  violence  only,  to  suppress  the  business  of  another,. 


the  ease,  was  held  to  have  been  properly  excused,  upon  a  challenge  for 
cause.     Anson  v.  Dwiglit,  IS  Iowa,  241. 

i  United  States  v.  Borger  (U.  S.  Ch-.  Ct.  S.  D.  X.  Y.,  May,  1881'),  7 
Fed.  Rep.  193;  United  States  v.  Duff  (same  court,  January,  1881),  & 
Fed.  Rep.  45,  48.     See  in  this  connection,  post,  §  105. 

2  Brittain  v.  Allen,  2  Dev.  120. 

SMaretzek  v.  Cauldwell,  2  Abb.   Pr.  (N.  S.)  407;  s.  c,  5  Robt.  660;: 


202         GROrXDS  OF  CUALLEN'GE  FOR  CAUSE.     [f  11.  XI. 

would  intlic-t  danuigcs,  regardless  of  the  evidence,  in  a  case 
growing  out  of  the  calling.^ 

In  a  civil  suit,  a  i)rejudice  of  a  juror  against  a  person  not 
ii  party  to  the  suit,  although  sustaining  close  business  rela- 
tions with  one  of  the  parties,  has  l)een  held  to  form  no  ob- 
jection to  his  competency.'-  There  would,  however,  seem 
to  be  no  good  reason  why  the  court  should  not,  in  the  exer- 
cise of  its  discretion,  stand  such  juror  aside,  and  complete 
the  panel  from  those  free  from  the  suspicion  of  prejudice. 

§  196.  Pi'ejiuUce  against  a  Party's  Nationality. —  A 
slight  prejudice  against  people  of  a  particular  nationality 
will  not  necessarily  exclude  a  juror  on  the  trial  of  one  of 
that  nationality  for  a  criminal  offense.  Thus,  upon  the 
trial  of  an  Italian  for  murder,  a  juror  testified  in  sub- 
stance that  he  had  had  some  business  relations  with  the 
Italians  ;  that  they  were  a  race  he  was  ' '  not  particularly 
fond  of,  and  did  not  think  much  of,  judging  from  those  we 
have  here  ;  "   and  yat  he  was  allowed  to  serve.^ 

§  197.  ProjiKlice  af;aiiist  the  Character  of  the  Ac- 
cused.—  It  is  quite  generally  considered  that  an  unfavora- 
ble impress'on  of  the  character  of  an  accused  person,  de- 
rived from  his  general  reputation,  constitutes  no  ground  of 
challenge  to  a  juror  called  for  the  trial  of  such  person  upon 
a  criminal  charge.      Any  other  rule  would  place  the  most 

Uuited  States  v.  Noelke,  17  Blatcli.  554;  s.  c,  1  Fed.  Kep.  42G;  9  Ke- 
porter,  .505;  Kroer  v.  People,  78  111.  294. 

J  Albrecht  v.  Walker,  73  111.  69.  See  also  Wimieslieik  Ins.  Co.  v. 
Schueller,  CO  111.465;  Swigart  v.  State,  67  Iiid.  287;  s.  c,  21  Alb.  L.  J. 
278;  Keisev  v.  Lines,  57  Ind.  431.  Compare  Elliott  v.  State,  73  Ind.  10. 
In  a  similar  case  a  juror  is  properly  rejected  whose  prejudice  against 
the  defendant's  business  is  such  that  he  cannot  give  the  testimony  of  a 
person  engaged  in  the  same  business  as  tlie  defendant  the  same  weight 
■which  he  could  the  testimony  of  other  persons.  Robinson  v.  Randall, 
82  111.  515.  Aliter,  where  the  business  is  per  se  unlawful.  See  ante, 
§  193.  This  distinction  was  overlooked  in  Meaux  v.  Whitehall,  8  Bradw. 
173. 

*  Straw n  v.  Cogswell,  28  111.  457. 

3  Balbo  V.  People,  19  Hun,  424;  s.  c,  aUhmed,  80  X  Y.  484.  Compare 
People  V.  Christie,  2  Park.  Cr.  R.  579;  s.  c,  2  Abb.  Pr.  256;  People  v. 
Reyes,  5  Cal.  347;  People  v.  Gar  Soy  (Sup.  Ct.  Cal.,  Doc.  1880),  23  Alb. 
L.  J.  418. 


§    198.]  BIAS,  PREJUDICE,  OR  OPINION.  203 

notorious  offenders  in  a  position  decidedly  more  advan- 
ta^eous  tlian  the  law  affords  to  those  whose  misdeeds  have 
not  rendered  them  infamous.  Either  they  could  not  be 
tried  at  all,  or  the  administration  of  justice  in  such  cases 
would  necessarily  fall  to  the  lot  of  juroi-s  hopelessly  igno- 
rant or  strongly  in  sympathy  with  the  offenders  themselves. ^ 
But  jurors  thus  prejudiced  should  not  be  allowed  to  sit 
upon  the  trial  of  the  ol^jects  of  their  unfavorable  opinion, 
unless  they  are  able,  for  the  time  being,  to  lay  aside  pre- 
possessions of  this  character,  and  to  give  the  accused  a  fair 
trial  as  guaranteed  by  law,  and  render  a  verdict  according  to 
the  evidence.'- 

§  198.  Belief  that  the  Accused  is  Iimoceiit. —  In  all 
criminal  trials,  without  exception,  there  is  given  to  the 
State,  or  to  the  prosecution,  precisely  the  same  right  of 
challenging  a  juror  for  cause  as  is  given  to  the  defendant. 
In  the  matter  of  selecting  a  jury,  the  accused  generally  en- 
joys an  advantage  over  the  prosecution  in  the  number  of 
peremptory  challenges."^  In  all  other  respects  there  is  an 
equality  of  right,  and,  as  has  been  frequently  said,  "  It  is 
difficult  to  find  any  sufficient  reason  for  requiring  the  State 
to  submit  its  cause  to  a  jury  composed  of  men  who  have 
determined  in  advance  to  acquit,  which  would  not  equally 
justify  a  requirement  of  the  accused  that  he  should  submit 
to  be  tried  by  a  jury  predetermined  to  convict."  * 

A  specious  argument  is  sometimes  based  upon  the  pre- 
sumption of  innocence  which  the  law  iuteri)oses  for  the 
benefit  of  accused  persons.  Thus,  upon  the  trial  of  Aaron 
Burr,  the  defendant  addressed  the  couit  as  follows : 
^'  The  law  presumes  every  man  to  be  innocent,  until  he  has 

1  People  V.  Loluiian,  2  Barb.  450;  People  v.  Knickerbocker,  1  Park.  Cr. 
R.  302;  People  v.  Allen,  43  N.  Y.  28;  Anderson  v.  State,  14  Ga.  710; 
Willis  v.  State,  12  Ga.  444;  State  v.  Schnapper,  22  La.  An.  43;  People  v. 
Mahoney,  IS  Cal.  ISO;  State  v.  Davis,  14  Xev.  439,  450;  Monroe  v.  State, 
23  Tex.  210. 

*  Ibid.     See  also  :Martin  v.  State,  25  Ga.  494. 

2  Ante  §  165;  subsccs.  4-41. 

^  State  V.  West,  69  Mo.  401,  403,  per  llenrjs  J.  See  also  Com.  v. 
Lesher,  17  Serg.  &  R.  155;  Commander  v.  State,  GO  Ala.  1. 


204         GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

been  proved  to  be  guilty.  According  to  the  rules  of  law, 
it  is!  the  duty  of  every  citizen  who  serves  on  this  jury  to 
hold  himself  completely  unbiased  ;  it  is  no  disqualification, 
then,  for  a  man  to  come  forward  and  declare  that  he 
l)elieves  me  to  be  innocent."  ^  This  contention,  however, 
was  briefly  disposed  of  by  Chief  Justice  Marshall.  "  The 
law,"  said  he,  "  certainly  presumes  every  man  to  be  inno- 
cent till  the  contrary  be  proved  ;  but  if  a  juryman  give  an 
opinion  in  favor  of  the  prisoner,  he  must  be  rejected."  '^ 

§  199.  A  Foeliiijj;-  of  Lenity. —  The  expression  of  a  wish 
or  desire  that  a  party  may  prevail  is  more  plainly  a  cause 
of  challenge  than  a  deliberate  expression  of  opinion  that 
such  party  ought  to  prevail.^  One  who  had  expressed  an 
opinion  that  a  person  who  had  been  convicted  and  sentenced 
for  a  criminal  offense  had  been  sufliciently  punished  there- 
for, and  who  had  signed  a  petition  for  his  pardon,  was  not 
competent  to  sit  as  a  juror,  upon  the  trial  of  a  civil  action 
against  the  same  person,  founded  upon  the  criminal  act.* 

§  200.  Tlie  Juror  iiinvilling  to  trust  liimself. —  Jurors 
have  been  held  to  be  competent  who  believed  that  they 
would  be  guided  by  the  evidence  if  sitting  upon  the  jury, 
but  at  the  same  time  expressed  a  feeling  of  unwillingness  to 
trust  themselves,  on  account  of  certain  sympathies  for  one 
of  the  parties.'^  '•  This  remark,"  said  Bkockenbkough,  J., 
dissenting  from  his  brethren,''  "  is  such  an  one  as  almost 
any  man  of  delicacy  and  uprightness  would  have  made 
of  himself  in  such  a  situation.  The  remark,  if  accom- 
panied by  an  open  and  ingenuous  manner,  would  seem  to 
indicate  that  the  venire-man  would  cautiously  keep  watch 
on  his  own  feelings  and  prepossessions,  and  is  entirely  com- 
patible with  a  high  sense  of  justice,  and  a  scrupulous  im- 
partiality."    The    contrary,      however,    is    maintained    in 

1 1  Burr's  Trial,  p.  425. 
2  Ihid. 

*  Pike  County  v.  Griffln,  &c.  Plank  Eoad  Co.,  15  Ga.  39. 
<  Asbuiy  Ins.  Co.  v.  AVarren,  66  Me.  523. 

5  Com.  V.  Webster,  5  Cush.  295,  298;  Montague  v.  Com.,  10  Gratt.  767. 
overruling  upon  this  point  Lithgow  v.  Com.,  2  Va.  Cas.  297. 
«  2  Va.  Cas.  313. 


§201.]  BIAS,  PREJUDICE,  OR  OPINION.  £05 

other  cases. ^  Thus,  a  juror  who,  upon  examination,  testi- 
lies  that  he  has  conscientious  scruples  as  to  finding  a  ver- 
dict in  a  capital  case,  is  incompetent,  although,  upon  further 
examination,  he  states  that  his  scruples  consist  only  in 
tender  feelings  towards  the  prisoner, —  a  fear  that  he  may 
do  him  wrong.-  And  so,  although  he  declares  that,  if 
forced  to  serve  and  sworn  to  render  a  verdict  accordinc;  to 
the  evidence,  he  would  respect  his  oath,  at  the  same  time 
adding,  "  but  I  should  not  feel  willing  to  be  sworn  in  the 
case."  ^  In  such  a  case,  it  has  been  observed,  the  juror's 
standard  of  evidence  is  unknown,  and  may  be  as  far  re- 
moved from  the  legal  and  general  sense  of  justice  as  are 
his  scruples.* 

§  201.  A  Preference  in  Case  the  Evidence  is  evenly 
balanced. —  A  juror  who  declares  that  his  feeling  for  one 
of  the  parties  is  such  that,  if  the  evidence  in  the  case  were 
evenly  balanced,  his  mind  w^ould  incline  in  favor  of  that 
party,  but  who  at  the  same  time  states  that  if  the  evidence 
were  against  such  party,  he  would  so  decide  the  case,  and 
would  do  his  duty  as  a  juror  under  the  instructions  of  the 
court,  has  been  held  not  incompetent.''  The  soundness  of 
this  conclusion  may  be  doubted.  It  is,  in  general,  a  good 
cause  of  challenge  that,  unaffected  by  evidence,  the  mind 
of  the  juror  will  "  lean"'  one  way  or  the  other.*'     It  may 

^  McLarea  v.  Birdsong,  24  Ga.  265;  Edwards  v.  Fairar,  2  La.  An.  307; 
Dejarnette  v.  Com.  (Sup.  Ct.  App.  Va.,  1881),  11  Reporter,  653. 

2  O'Brien  v.  People,  36  N.  Y.  276. 

»  Walter  v.  People,  32  X.  Y.  147;  s.  c,  6  Park.  Cr.  K.  15;  18  Abb.  Pr. 
147. 

*  O'Brien  v.  People,  48  Barb.  274,  277,  per  Leonard,  J. 

5  McFadden  v.  Wallace,  38  Cal.  51;  Trenor  v.  Central  Pacific  R.  Co., 
50  Cal.  222. 

«  Chicago,  etc.  R.  Co.  v.  Adler,  56  111.  345.  In  this  case  one  of  the 
jurors  stated  upon  the  voir  dire  that,  in  a  contest  between  a  railroad 
company  and  a  citizen,  he  should  "  lean  against  "  the  corporation,  be- 
cause the  company  "  were  able  to  stand  it,"  and  he  thought  a  private 
individual  should  "  have  a  little  mite  the  advantage."  Such  views  are 
very  common,  but  seldom  so  ingenuously  expressed.  See  also  Curry  v. 
State,  4  Neb.  545;  Sam  v.  State,  13  Smed.  &  M.  189, 193;  Richey  v.  Mis- 
souri, etc.  R.  Co.,  7  Mo.  App.  581.  It  has  been  held  that  jurors  may  be 
asked  as  to  which  way  they  would  be  inclined  to  decide  the  case,  if,  upon 


206  GKOUNDS  OF  CHALLENGE  FOll  CAUSE.  [CH.  XI. 

happen  that  the  l)urden  of  proof  lies  upon  that  party  to- 
wards whom  the  preference  exists.  A  juror  is  clearly  in- 
competent wlio  would  decide  in  favor  of  this  part}',  when 
the  evidence  preponderates  in  favor  of  neither  party.' 

§  202.  Conscientious  Scruples  or  Opinions  against  Cap- 
ital Punishment.  — These  do  not  seem  to  have  been  as  ten- 
derly regarded  formerly  as  in  later  times.  Thus,  in  a  report 
of  nisi  prius  cases  in  Pennsylvania''^  we  find  that  in  one 
case  a  juror,  on  being  called  up  and  requested  to  go  into 
the  jury-box,  declared  that  he  was  conscientiously  scrupu- 
lous about  sitting  on  a  case  of  life  and  death,  and  could 
never,  upon  any  evidence  which  might  be  given,  join  in  a  ver- 
dict the  consequence  of  which  might  be  to  inflict  the  pun- 
nishment  of  death.  The  prosecuting  attorney,  however, 
did  not  challenge  him.  "  He  stood,  then,"  said  the  court, 
"  in  the  situation  of  a  juror  having  no  legal  cause  to  assign, 
refusing  to  be  qualified  or  to  perform  his  duty.  Nothing, 
of  course,  remained  but  for  this  court  (who  are  imperiously 
bound  to  obey  the  law)  to  imprison  him  for  contumacy."* 

hearing  the  testimony,  they  should  find  it  evenly  balanced.  Chicago, 
etc.  R.  Co.  v.  Adler,  56  111.  345;  Chicago,  etc.  R.  Co.  v.  Buttolf.  G6  111. 
347;  Galena,  etc.  R.  Co.  v.  Haslam,  73  111.  494;  Richmond  v.  Roberts, 
98  ni.  472.  In  this  last  case  the  juror  made  answer  to  the  above  ques- 
tion, that  in  that  case  he  should  feel  inclined  to  find  for  the  plaintiff,  but, 
upon  further  examination,  stated  that  he  had  neither  formed  nor  ex- 
pressed an  opinion;  that  he  had  no  bias  or  prejudice  against  either  of 
the  parties,  and  knew  no  reason  why  he  could  not  sit  as  an  impartial 
juror,  and  decide  the  case  according  to  the  evidence.  The  court  held 
the  juror  competent,  distinguishing  its  opinion  in  this  case  from  that 
in  Chicago,  etc.  R.  Co.  v.  Adler,  supra.  "  What  was  there  said,''  observed 
Craig,  J.,  "  might  seem  to  sustain  the  position  of  counsel  here;  but  the 
juror  went  further  in  this  case  than  did  the  juror  in  the  case  cited. 
*  *  *  We  are  of  opinion  such  a  person  is  a  competent  juror."  Courts 
generally,  however,  will  not  permit  hypothetical  questions  to  be  put  to  a 
juror  upon  the  voir  dire,  with  a  view  to  testing  his  competency.  See 
State  V.Arnold,  12  Iowa,  479;  State  v.  Davis,  14  Xev.  439;  State  v. 
Leicht,  17  Iowa,  28;  State  v.  Ward,  14  La.  An.  673;  State  v.  Bennett, 
14  La.  An.  651;  State  v.  Bill,  15  La.  An.  114. 

1  Mima    Queeu    v.  Hepburn,  7   Cranch,    290;    ^leaux    v.  Whitehall, 
S  Bradw.  173. 

2  Com.  V.  Gross,  1  Ashmead,  281,287. 

s  Ibid.,  p.  287.     In  United  States  v.  McMahon,  4  Cranch  C.  C.  573,  the 


§    202.]  BIAS,  PREJUDICE,  OR  OPINION.  207 

This  matter  was  first  decided  in  favor  of  the  challenge 
by  Mr.  Justice  Story  in  the  year  1820.^  Two  Quakers^ 
upon  being  called  to  be  sworn  in  a  capital  case,  excepted  to 
themselves  as  disqualified.  They  believed  that  men  might 
be  rightfully  punished  with  death  for  the  causes  set  down 
in  the  divine  law,  but  for  none  others  ;  and  in  point  of  con- 
science they  could  not  give  a  verdict  for  a  conviction  where 
the  punishment  was  death,  unless  the  case  was  directly 
within  the  terms  of  the  divine  law.  Upon  these  facts  the 
enlightened  jurist  said:  "It  is  well  known  to  us  all  that 
our  laws  annex  the  punishment  of  death  in  several  cases 
where  the  divine  laAv  is  silent,  and  under  circumstances  dif- 
ferent from  those  expressed  in  that  law.  To  compel  a  Qua- 
ker to  sit  as  a  juror  on  such  cases  is  to  compel  him  to 
decide  against  his  conscience,  or  to  commit  a  solemn  per- 
jury. Each  of  these  alternatives  is  equally  repugnant  to 
the  principles  of  justice  and  common  sense.  To  insist  on  a 
juror  sitting  in  a  cause,  when  he  acknowledges  himself  to  be 
under  influences,  no  matter  whether  they  arise  from  inter- 
est, from  prejudices,  or  from  religious  opinions,  which  will 
prevent  him  from  giving  a  true  verdict  according  to  law  and 
evidence,  would  be  to  subvert  the  objects  of  a  trial  by  jury, 
and  to  bring  into  disgrace  and  contempt  the  proceedings  of 
courts  of  justice."  ^  This  was  followed  by  the  decision  of 
the  Supreme  Court  of   Pennsylvania  to  the  same  effect,* 


question  was  submitted  to  triors,  whether  a  person  liaving  the  conscien- 
tious scruples  above  stated  was  a  competent  j  uror  in  a  capital  case.  Later, 
such  scruples  were  held  to  be  good  ground  for  a  challenge  for  cause. 
United  States  v.  Ware,  2  Cranch  C.  C.  477.  In  Mansell  v.  Reg.,  S  El.  & 
Bl.  54,  the  point  was  raised,  but  it  became  unnecessarj'  to  decide  it. 

1  United  States  v.  Cornell,  2  Mason,  91,  104. 

2  Ibid.,  p.  105  .In  People  v.  Ryan  (tried  in  1823),  2  Wheeler  Cr.  C.  47, 
a  Quaker  was  excused  from  service  as  a  juror  in  a  capital  case,  on  the 
ground  that  the  tenets  of  his  religion  would  not  justify  him  in  taking 
the  life  of  any  human  being  for  any  crime.  On  the  same  trial  another 
juror  who  was  not  a  Quaker  was  compelled  to  serve,  although  he  alleged 
conscientious  scruples  against  finding  a  verdict  that  would  put  in  jeop- 
ardy the  life  of  the  prisoner.  Later,  however,  such  a  juror  was  excused. 
People  V.  Jones,  Edm.  Sel.  Cas.  112. 

'  Com.  v.  Lesher,  17  Serg.  &  R.  155. 


208         GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

since    which    time    this    challenge    has    been    generally    al- 
lowed.^ 

Some  courts  have  held  that  a  juror,  although  conscien- 
tiously opposed  to  capital  punishment,  ought  to  be  per- 
mitted to  serve  ui)on  the  trial  of  a  capital  offense,  when 
confident  of  his  ability  to  do  justice  between  the  State  and 
the  accused,  notwithstanding  his  scruples.'^     The  wisdom  of 

1  See  O'Brien  v.  The  People,  36  N".  Y.  276;  s.  c,  48  Barb.  274;  Loweii- 
burg  V.  The  People,  5  Park.  Cr.  R.  414,  425 ;  United  States  v.  Wilson, 
Baldwin,  C.  C.  83 ;  Clore's  Case,  8  Gratt.  606 ;  Lewis  v.  State,  9  Smed.  &  M. 
115;  Williams  y.  State,  32  Miss.  389;  State  V.Kennedy,  8  Rob.  (La.) 
590;  Com.  v.  Twombly,  10  Pick.  480,  note;  Burrell  v.  State,  18  Tex.  713; 
Hyde  v.  State,  16  Tex.  445;  White  v.  State,  16  Tex.  207;  Montague  v. 
Com.,  10  Gratt.  767;  People  v.  Sanchez,  24  Cal.  17;  Waller  v.  State,  40 
Ala.  325;  People  v.  Tanner,  2  Cal.  257;  Pierce  v.  State,  13  N.  H.  536, 
556;  State  v.  Ward,  39  Vt.  225;  Etheridge  v.  State,  8  Tex.  App.  133; 
Com.  V.  Sherry,  Wliart.  on  Horn.  481 ;  Martin  v.  State,  16  Ohio, 
364;  Haywood  v.  Calhoun,  2  Ohio  St.  164;  St.  Louis  v.  State,  8  Neb. 
405;  Williams  v.  State,  3  Ga.  453;  Russell  v.  State,  53  Miss.  367; 
White  T.  State,  52  Miss.  216;  Fortenberry  v.  State,  55  Miss.  403; 
Jones  V.  State,  2  Blackf.  475;  Gross  v.  State,  2  Ind.  329;  Driskill 
V.  State,  7  Ind.  338;  Fahnestock  v.  State,  23  Ind.  231;  Greenley  v.  State, 
60  Ind.  141;  Monday  v.  State,  32  Ga.  672;  State  v.  West,  69  Mo.  401 ; 
People  V.  Wilson,  3  Park.  Cr.  R.  199;  State  v.  Mullen,  14  La.  An.  570; 
State  V.  Reeves,  11  La.  An.  685;  State  v.  Clark,  32  La.  An.  559.  This 
question  was  set  at  rest  in  New  York  as  early  as  1801  by  a  statute  which 
declared  that  "  no  Quaker  or  reputed  Quaker  shall  be  comi^elled  to  serve 
as  a  juror  upon  the  trial  of  any  indictment  for  treason  or  murder."  At 
the  time  this  statute  was  passed  it  was  supposed  that  the  Society  of 
Friends  alone  were  opposed  to  capital  punishment.  It  subssquently  ap- 
pearing that  persons  other  than  of  this  sect  denied  the  propriety  of  such 
punishment,  it  was  enacted  that  "  persons  of  any  religious  denomina- 
tion whose  opinions  are  such  as  to  preclude  them  from  finding  any  de- 
fendant guilty  of  an  offense  punishable  with  death,  shall  not  be  com- 
pelled or  allowed  to  serve  as  jurors  on  the  trial  of  an  indictment  for 
an  offense  punishable  with  death."  2  Rev.  Stat.  734,  §  12.  In 
a  case  arising  under  this  statute,  it  w^as  contended  that  this  sec- 
tion embraced  those  only  who  belonged  to  a  religious  denomination 
which,  as  a  body,  entertained  such  opinions.  But  C'lief  Justice  Savage 
rejected  this  construction,  and  held  any  person  entertaining  such  opin- 
ions to  be  unfit  to  be  a  juror  vmder  the  circumstances.  People  v.  Damon, 
13  Wend.  351, 354.  The  grounds  of  the  conscientious  scruples  of  a  partic- 
ular juror  are  of  no  importance.  It  is  sufficient  to  exclude  him  from  the 
panel  that  they  exist.  Walter  v.  People,  32  N.  Y.  147,  161 ;  O'Brien  v. 
People,  36  N.  Y.  276,  278;  Gordon  v.  People,  33  N.  Y.  501. 

2  WilUams  v.  State,  32  Miss.  389 ;  People  v.  Wilson,  3  Park.  Cr.  R.  199. 


§    202.]  BIAS,  PREJUDICE,  OR  OPINION.  209 

this  conclusion  may  be  strongly  questioned.  One  con- 
scientiously scrupulous  of  taking  human  life  by  process  of 
law  ought  not,  although  Avilling,  to  be  placed  in  such  a  posi- 
tion that,  to  observe  his  oath  as  a  juror,  he  may  be  called 
upon  to  violate  his  conscience  ;  or,  on  the  other  hand,  to  fol- 
low the  dictates  of  his  conscience,  he  may  violate  his  oath. 
A  juror  ought  not  to  be  permitted  to  serve,  having,  in  one 
breath,  affirmed  and  disaffirmed  his  competency.^  Doubt- 
less such  a  juror  would  require  more  evidence  to  induce 
him  to  render  a  verdict  of  guilty  in  a  case  where  the  pun- 
ishment is  death,  than  where  it  is  imprisonment  merely. 
This  circumstance  alone  ought  to  disqualify  him.^  And  so, 
where  the  juror  declares  that  his  conscientious  scruples  are 
limited  to  cases  in  which  circumstantial  evidence  is  relied 
upon  for  a  conviction.^  This  kind  of  evidence  the  law 
recognizes  as  of  equal  value  with  other  evidence,  and  a 
juror  in  any  case  w^ho  cannot  give  it  due  weight  ought  to  be 
excluded.* 

The  rule  of  exclusion  holds  good,  although  the  offense 
may  be  punished  capitally  or  otherwise,  in  the  discretion  of 
the  jury.  Thus,  on  the  trial  of  an  indictment  for  grand 
larceny,  punishable  with  imprisonment  or  death,  one  called 
as  a  juror,  who  stated  that  he  would  hang  a  man  for  mur- 
der, but  would  not  hang  him  for  stealing,  was  held  to  have 
been  properly  rejected.  "  He  was  not,"  said  Murray,  C 
J.,  "in  a  position  to  exercise  that  discretion,  upon  a  full 

1  Waller  v.  State,  40  Ala.  325.  A  juror  who  stated  upon  the  voir  dire 
that  he  did  not  think  he  could  do  the  prisoner  justice,  was  held  incom- 
petent, although  he  subsequently  stated  that  he  could  come  to  the  trial 
with  an  unbiased  and  unprejudiced  mind.  Wright  v.  Com.,  32  Gratt. 
941. 

2  State  V.  Ward,  39  Vt.  225. 

3  Shafer  v.  State,  7  Tex.  App.  239;  Jones  v.  State,  57  Miss.  684;  State 
V.  Pritchard,  15  Nev.  74;  Smith  v.  State,  55  Ala.  1;  People  v.  Ah 
Chung,  54  Cal.  398;  State  v.  West,  69  Mo.  401 ;  Gates  v.  People,  14  111. 
433;   s.  c,  2  Am.  L.  Eeg.  671;    State  v.  Bunger,  11  La.  An.  607. 

4  Smith  V.  State,  55  Ala.  1;  People  v.  Ah  Chung,  54  Cal.  398;  State 
V.  West,  69  Mo.  401 ;  Gates  v.  People,  14  111.  433 ;  Jones  v.  State,  57  Miss. 
685;  State  v.  Bunger,  11  La.  An.  607. 

(14) 


210  (iUOUNDS  OF  CHALLENGE  FOR  CAUSE.  [CH.   XT, 

hearing  of  the  case,  which  the  hiw  contemplated  he  should 
possess.' 

§  203.  Opposition  to  Capital  Punislimout  upon  Politi- 
cal Grounds. —  One  opposed  to  capital  punishment  "on 
principle  "  is  not  incompetent  to  sit  upon  the  trial  of  a  case 
involving  the  death  penalty.  As  observed  by  the  Supreme 
Court  of  California  on  one  occasion,  "  Many  men  are  op- 
posed on  principle  to  capital  punishment,  because,  as  often 
remarked,  they  believe  that  the  worst  use  that  can  be  made 
of  a  man  is  to  hang  him.  They  believe  that  society  would 
be  benefited  by  the  adoption  of  some  other  mode  of  pun- 
ishment, and  yet,  as  long  as  the  law  provides  that  certain 
crimes  shall  be  punished  with  death,  would  feel  no  con- 
scientious scruples  in  finding  a  verdict  of  guilty  against  one 
accused  of  such  crime.  With  them  it  is  a  principle  founded 
on  political  prejudices,  or  public  policy,  with  which  con- 
science has  no  connection  whatever."  ^ 

§  204.  Opinion  upon  the  Subject-matter  in  a  Civil  or 
Criminal  Case. —  The  reports  furnish  a  large  body  of  au- 
thority upon  this  topic.  It  has  acquired  especial  promi- 
nence in  criminal  cases,  where  the  conscientious  efforts  of 
courts  to  do  full  justice  to  accused  persons,  especially  in 
capital  cases,  have  resulted  in  many  metaphysical  and  im- 
practicable distinctions  which  have  produced  great  confusion 
and  injustice  in  the  administration  of  the  law.  This  is 
obvious  from  the  experience  of  practitioners  and  fre- 
quent observation  from  the  bench,  that  upon  no  question 
of  civil  or  criminal  practice  have  the  decisions  of  the  courts 
been  more  inharmonious  than  upon  this  question  of  qualifi- 
cation or  disqualification  of  jurors,  arising  from  the  forma- 


1  People  V.  Tanner,  2  Cal,  257.  See  also  Caldwell  v.  State,  41  Tex. 
87;  State  v.  Melvin,  11  La.  An.  535;  Driskill  v.  State,  7  Ind.  338; 
Greenley  v.  State,  60  Ind.  141. 

'  People  V.  Stewart,  7  Cal.  140,  143,  per  Murray,  C.  J.  See  also  Com. 
V.  Webster,  5  Gush.  295,  298;  Atkins  v.  State,  16  Ark.  568.  It  is  no  evi- 
dence of  the  existence  of  the  conscientious  scruples  in  question  that  a 
juror,  when  inteiTOgated  upon  the  subject,  simply  says  that  he  "  would 
not  like  for  a  man  to  be  hung."    Smith  v.  State,  55  Miss.  410. 


§205.]  BIAS,  PREJUDICE,  OR  OPINION.  211 

tioii  01  expression  of  opinion  of  the  guilt  or  innocence  of  the 
accused.^ 

In  a  late  decision  of  the  Texas  Court  of  Appeals,  Clark, 
J.,  delivering  the  opinion  of  the  court,  took  a  despondent 
view  of  this  subject.  "  It  would  be  a  useless  and  almost 
interminable  task,"  said  he,  "to  explore  the  various  deci- 
sions of  the  several  States  for  the  purpose  of  reconciling 
them,  and  deducing  therefrom  a  uniform  rule  as  to  the  com- 
petency of  a  juror  in  a  criminal  case.  The  decisions  of 
scarcely  any  one  State  are  reconcilable  with  each  other,  and 
the  mind  would  be  lost  in  bewilderment  at  the  threshold  of 
the  attempt.  Evidently,  in  the  adjudication  of  particular 
cases,  the  courts  have  not  been  guided  by  any  fixed  principle, 
and,  as  a  consequence,  our  jurisprudence  in  this  respect  has 
long  since  been  launched  upon  a  sea  of  chaos."  ^ 

We  cannot,  therefore,  endeavor  to  explore  all  the  ex- 
quisite distinctions  which  the  books  afford,  but  in  the  fol- 
lowino;  sections  an  effort  will  be  made  to  set  forth  the  car- 
dinal  rules,  and  to  discuss  the  tendency  of  recent  decisions 
upon  this  subject. 

§  205.  (Continued.)  A  Ground  of  Challenge  for  Prin- 
cipal Cause  or  to  tlie  Favor. —  Where  the  distinction  is 
retained  between  challenges  for  principal  cause  and  to  the 
favor,  the  formation  or  expression  of  an  opinion  tending  to 
disqualify  a  juror  will  afford  a  principal  cause  of  challenge.^ 
But  the  impressions  or  opinions  entertained  by  the  juror 
may  not  be  sufficient  in  law  to  affect  his  competency ; 
wherefore,  a  challenge  to  the  favor  may  be  taken,  in  which 
case  the  triors  may  properly  find  the  juror  to  be  incompe- 
tent.*    And  where  a  challenge  to  the  favor  is  taken  in  the 

1  People  V.  Reynolds,  16  Cal.  128. 

2  Rothschild  v.  State,  7  Tex.  App.  519,  542. 

'Pringle  v.  Huse,  1  Cow.  432;  Ex  parte  Vermilyea,  6  Cow.  555;  Peo- 
ple V.  Vermilyea,  7  Cow.  108;  People  v.  AUen,  43  N.  Y.  28;  Rice  v.  The 
State,  1  Yerg.  432 ;  McGowan  v.  The  State,  9  Yerg.  184 ;  Com.  v.  Lesher, 
17  Serg.  &  R.  156. 

*  Freeman  v.  People,  4  Den.  9,  35;  People  v.  Honeyman,  3  Den.  121; 
Smith  V.  Floyd,  18  Barb.  522;  People  v.  McMahon,  2  Park.  Cr.  R.  663; 
Anderson  v.  State,  14  Ga.  709;  Ray  v.  State,  15  Ga.  223;  Stout  v.  Peo- 
ple,;4JPari:.  Cr.  R.  132;  Schoeffler  v.  State,  3  Wis.  823. 


212  GROUNDS  OF  CHALLENGE  FOR  CAUSE.  [CII.  XI. 

first  instance,  although  the  facts  proved  before  the  triors 
would  support  a  challenge  for  principal  cause,  yet  the  ques- 
tion of  competency  belonging  cxclusivelj'  to  the  triors,  the 
court  cannot  be  called  upon  to  rule,  as  matter  of  law,  that 
the  juror,  upon  the  facts  proved,  is  incompetent.  The 
prisoner,  by  taking  a  challenge  in  this  form,  remits  the  de- 
cision of  the  question  to  the  discretion  of  the  triors.  The 
triors  may,  therefore,  properlj  find  the  juror  to  be  compe- 
tent.^ 

§  206.  Formation  without  Expression  of  Opinion. — 
The  simple  formation  of  an  opi)iion,  without  any  expression 
of  it,  does  not  seem  to  have  been  considered  to  be  a  cause  of 
challenge  at  common  law.  Indeed,  at  common  law  it  was 
only  the  expression  of  such  opinions  or  beliefs  as  showed 
ill-win  which  disqualified  the  juror. ^  However,  a  careful 
study  of  the  cases  relating  to  the  competency  of  jurors 
«hows  a  tendency  in  modern  times  to  multiply  the  causes  of 
disqualification.  Accordingly,  we  find  in  the  early  trial  of 
Juries  for  treason  against  the  United  States  that  Mr.  Justice 
Chase  allowed  this  form  of  question  to  be  put  to  the 
jurors :  "  Have  you  ever  formed  or  delivered  an  opinion  as 
to  the  guilt  or  innocence  of  the  prisoner,  or  that  he  ought 
to  be  punished?"  ^  But  during  the  same  year,  in  another 
famous  trial  before  the  same  judge,  the  form  of  the  question 
was:  "Have  you  ever  formed  and  delivered  an  opinion 
upon  the  charges  contained  in  the  indictment?"  * 

These  cases  show  that  it  was  quite  uncertain  whether  a  bare 
formation  of  an  opinion  as  to  the  guilt  of  an  accused  person 
would  per  se  disqualify  the  juror.  Upon  the  presenta- 
tion of  the  articles  impeaching  Mr.  Justice  Chase,  in  the 
year  1805,  his  conduct  during  the  trials  of  Fries  and 
Callender,  before  noticed,  as  showing  oppression  in  office, 
and  an  overweening  desire  to  convict,  were  the  substantial 
charges.     The  question  allowed  in  Callender's  Case  became 

J  People  V.  Allen,  43  N.  Y.  28. 

2  2  Hawk.  P.  C.,ch.  43,  §  28;  Rex  v.  Edmunds,  4  Barn.  &  Aid.  471,492. 

3  VVliMi-t.  St.  Tr.  610,  614. 

^  Callenders  Case,  Wnart.  St.  Tr.  688,  696. 


§    206.]  BIAS,  PREJUDICE,  OR  OPINION.  213 

the  target  of  especial  invective  from  the  counsel  for  the 
prosecution,  as  being  in  the  conjunctive  instead  of  the  dis- 
junctive form.  "Being  put  in  the  conjunctive,"  said  Mr. 
Randolph,  "the  most  inveterate  foe  of  the  traverser  who 
was  artful,  or  cautious  enough  to  forbear  the  expression  of 
his  enmity,  would,  therefore,  have  been  admitted  as  com- 
petent to  pass  between  the  traverser  and  his  country  in  a 
criminal  prosecution."^ 

Two  years  later,  when  it  became  the  duty  of  Chief  Jus- 
tice Marshall,  upon  a  charge  of  treason  against  the  United 
States,  to  sit  at  the  trial  of  the  presiding  officer  of  the 
body  before  whom  Mr.  Justice  Chase  had  been  arraigned, 
the  form  of  question  adopted  by  the  latter  upon  the  trial 
of  Callender  was  approved,  not  only  once,  but  many  times 
during  the  examination  of  the  jurors."^  The  Chief  Justice 
pointedly  said:  "The  rule  is,  that  a  man  must  not  only 
have  formed,  but  declared,  an  opinion,  in  order  to  exclude 
him  from  serving  on  the  jury."  ^ 

Upon  this  point  the  Tennessee  court,  in  an  early  case, 
observed  that  the  juror  might  be  asked  "  whether  he  has 
given  an  opinion  1)eforehand,  but  not  whether  he  has 
formed  an  opinion  ;  for  such  is  the  nature  of  the  human 
mind  that  it  cannot  remain  in  perfect  suspense.  The  best 
men,  hearing  of  any  transaction  in  society,  will  unavoid- 
ably receive  some  impression,  but  still  may  stand  indifferent 
between  the  parties  as  respects  the  investigation  and  deter- 
mination of  the  cause.  But  when  the  relation  of  a  trans- 
action so  interests  the  mind  as  to  enable  it  to  retain  a  recol- 
lection of  its  circumstances,  so  as  to  give  an  opinion,  we 
cannot  well  presume  a  perfect  indifference.  Giving  an 
opinion  is  a  proof  of  a  strong  impression  having  been 
made,  which  is  certainly  improper  in  a  juryman."*  And 
this  is  the  view  of  other  courts.^ 

1  Chase's  Trial,  p.  117. 

2  Trial  of  Aaron  Burr.  pi).  4:?,  44,  370,  371,  115,  416.  417.  419,  42o. 

3  Ibid.,  p.  44. 

■*  Berry  v.  Walleu,  1  Overton  (Tenn.)  187;  Temple  v.  Sumner,  Smith 
(N.  H.)  226,231. 
*  State    V.    Godfrey,   Brayt.    (Vt.)    170;    United  States    v.   Watkins. 


214         GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

The  bettor  view,  liowevcr,  would  seem  to  bo  that  the 
mere  exjmssion  of  an  opinion  is  not  an  ossontial  condition 
of  disqualification.  The  expression  of  tiie  oi)inion  is  only 
an  evidence  of  its  existence.  If  the  juror,  upon  his  voii- 
dire,  manifests  or  admits  the  existence  of  an  opinion 
amountinir  to  a  prejudgment  of  the  case,  he  is  disqualified 
whether  he  has  ever  expressed  the  opinion  or  not.'  And 
the  statutes  of  the  several  States  at  the  present  time  quite 
uniformly  declare  that  the  fornuition  as  well  as  the  expres- 
sion of  an  opinion  upon  the  case  to  1)0  tried  shall  constitute 
a  cause  of  challenge. 

§  207.  Opinions  which  do  not  disqualify. —  (1.)  Lord 
Mansfield's  /Standard  of  Impartiality  note  Impraclicahle. — 
At  the  outset  it  may  be  remarked  that  the  standard  of  im- 
partiality as  stated  by  Lord  Mansfield  in  Mylock  v.  8ala-  ' 
dint^  has  long  since  ceased  to  be  regarded  as  attainable.^ 
"  A  juror,"  said  he,  "  should  be  as  white  paper,  and  know 
neither  plaintiff  nor  defendant,  but  judge  of  the  issue 
merely  as  an  abstract  proposition  upon  the  evidence  pro- 
duced before  him.  lie  should  be  superior  even  to  a  sus- 
picion of  partiality."  The  courts  have  uniformly  reached 
the  conclusion  that,  with  the   present   means  of  disseminat- 

3  Cranch  C.  C.  565 ;  United  States  v.  Devaughan.  3  Cranoh  C  0.  84;  State 
V.  Madoil.  12  Fla.  151;  Boardniaii  v.  Wood,  3Vt.  570;  State  v.  Clark, 
42  Vt.  629;  State  v.  Phair,  48  Vt.  366;  State  v.  Tatro,  50  Vt.  483;  Noble 
V.   People,   1    111.   29;    Hudgins  v.    State,  2   Ga.   173;    Boon   v.   Stat«, 

1  Ga.  619;  Reynolds  v.  State,  1  Ga.  228;  Baker  v.  State,  15  Ga.  498; 
Griffin  V.  State,  15  Ga.  476. 

1  Osiander  V.  Com.,  3  Leigh,  780;  Annistead"s  Case,  11  Leigh,  657; 
State  V.  Wilson,  38  Conn.  126;  United  States  v.  Hanway  (Walsh's  Case), 

2  Wall.  Jr.  139 ;  United  States  v.  Wilson,  Bald.  C.  C.  84 ;  People  v.  Christie, 
2  Park.  Cr.  R.  579;  «.  c,  2  Abb.  Pr.  256;  Com.  v.  Knapp,  9  Pick.  496. 
498;  Corn.  v.  Webster,  5  Cush.  295,298;  People  v.  Hettick,  1  Wheeler 
Cr.'c.  399;  People  v.  Melvin,  2  Wheeler  Cr.  C.  265;  People  v.  .Johnson, 
2  Wheeler,  Cr.  C.  361,  367;  Romaine  v.  State,  7  Ind.  63:  Stewart  v. 
State,  13  Ark.  720;''Maize  v.  Sewell.  4  Blackf.  447;  Front  v.  Williams, 
29  Ind.  18. 

2  1  W.  Bl.  480,  481. 

3  In  a  case  decidnd  by  the  Snprenie  Court  of  Pennsylvania  in  the  year 
1794.  the  court  remarked  :  "  It  were  much  to  be  wished  that  the  minds 
of  the  jurors  should  be  as  white  paper,  but  it  can  scaicely  be  expected 


§    207.]  BIAS,  PREJUDICE,  OR  OPINION.  215 

ing  information,  a  jui'or's  mind  cannot  reasonably  be  ex- 
pected to  be  "  as  white  paper."  ^  It  is  no  objection  to  a 
juror  that  he  has  heard  much  about  the  case,  provided  that 
he  has  formed  no  opinion  thereon  ;  ^  nor  that  what  he  has 
heard  has  taken  shape  in  his  mind,  and  impressed  itself  as 
a  fact.  The  books  afford  no  better  statement  of  the  law 
upon  this  point  than  the  language  of  Chief  Justice  Mar- 
shall, upon  the  trial  of  Aaron  Burr. 

(2.)  77^6  Rule  as  declared  by  Chief  Justice  Marshall 
the  settled  Law. —  "  Were  it  possible,"  said  he,  "  to  obtain 
a  jury  without  any  prepossessions  whatever,  respecting  the 
guilt  or  innocence  of  the  accused,  it  would  be  extremely 
desirable  to  obtain  such  a  jury  ;  but  this  is  perhaps  impos- 
sible, and  therefore  will  not  be  required.  The  opinion 
which  has  been  avowed  by  the  court  is,  that  light  impres- 
sions which  may  fairly  be  supposed  to  yield  to  the  testi- 
mony that  may  be  offered,  which  may  leave  the  mind  open 
to  a  fair  consideration  of  that  testimony,  constitute  no  suffi- 
cient objection  to  a  juror ;  but  that  those  strong  and  deep 
impressions  which  will  close  the  mind  against  the  testimony 
that  may  be  offered  in  opposition  to  them,  which  will  com- 
bat that  testimony,  and  resist  its  force,  do  constitute  a  suffi- 
cient objection  to  him."  ^ 

where  they  come  de  vicineto .''^  McCausland  v.  McCausland,  1  Yeates, 
372,  378. 

1  "  We  must  either  recede,"  said  Cliief  Justice  Agnevv,  "•  and  go  back 
to  the  practice  of  an  age  when  ignorance  of  passing  events  constituted 
a  characteristic  of  the  times,  and  exclude  every  juror  who  has  formed 
any  opinion,  even  the  slightest;  or  we  must  stand  abreast  with  the 
present  age,  when  every  remarkable  event  of  to-daj'  is  known  all  over 
the  country  to  morrow,  and  exclude  those  only  whose  opinions  are  so 
fixed  as  to  be  pre-judgments,  or  have  been  formed  upon  the  known  evi- 
dence in  the  cause.  It  is  needless  to  say  the  world  moves  and  carries  us 
with  it,  and  if  we  lag  behind  we  must  commit  the  trial  of  the  most  im- 
portant causes  in  life  to  those  so  ignorant  that  their  dark  minds  have  never 
been  smitten  by  the  rays  of  intelligence."  O'Mara  v.  Com.,  75  Pa.  St. 
424,  428.     See  also  Keynolds  v.  United  States,  98  U.  S.  145,  15G. 

^  State  V.  Howard,  17  N.  H.  171 ;  State  v.  Potter,  18  Conn.  166;  Cora. 
V.  Thrasher,  11  Gray,  57. 

3  Trial  of  Aaron  Burr,  vol.  I.  p.  416.  See  also  Boon  v.  State,  1  Ga. 
618,  625;  Nelms  v.  State,  13   Smed.  &  M.   500,  504;  Smith  v.  Earaes, 


216        GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

The  foregoing  expression  of  opinion  by  this  distinguished 
jurist,  delivered  in  a  case  whicli  at  the  time  excited  univer- 
sal attention,  has  ever  since  exerted  a  marked  influence 
upon  the  determination  of  questions  of  this  character. 
Thus,  it  is  frequently  stated,  that  if  the  juror's  opinion  will 
"  readily  yield  "  to  the  evidence  presented  in  the  case,  he  is 
not  incompetent  to  sit  ui)on  the  trial  of  the  issue. ^  Such 
an  opinion  is  generally  formed  from  the  reading  of  nevv^s- 
papers,  or  from  any  other  source  of  rumor,  and  is  so  un- 
substantial in  its  nature  that  a  contradiction  from  the  same 
source  would  be  as  readily  accepted  as  true  as  the  origi- 
nal statement  upon  which  the  opinion  was  formed.'^     Vague 

4  111.  76;  Leach  v.  People,  53  111.  311 ;  Black  v.  State,  42  Tex.  377;  State 
V.  Desniouehet,  32  La.  An.  1241. 

'Sci-aaton  v.  Stewart,  52  Ind.  68;  McGregg  v.  State,  4  Blackf.  101; 
Van  Vacter  v.  McKillip,  7  Blackf.  578;  Morgan  v.  Stevenson,  6  Ind.  169; 
Rice  v.  State,  7  Ind.  332;  Lithgow  v.  Com.,  2  Va.  Cas.  297,  313;  Ulrich 
V.  People,  39  Mich.  245;  State  v.  George,  8  Rob.  (La.)  535;  State  v. 
Coleman,  27  La.  An.  691,  692;  Guetig  v.  State,  66  Ind.  94.  A  juror 
whose  frame  of  mind  is  such  that  he  is  in  doubt  as  to  whether  the  opin- 
ion he  has  formed  would  readily  j'ield  to  the  evidence  ought  to  be  ex- 
cluded. Dejarnette  v.  Com.  (Sup.  Ct.  App.  Va.  1881),  11  Reporter,  6.53. 
Compare  Stout  v.  People,  4  Park.  Cr.  R.  71,  111. 

«  People  v.  Stout,  4  Park.  Cr.  R.  71 ;  People  v.  Johnson,  2  Wheeler  Cr. 
Cas.  361,369;  Lowenberg  v.  People,  5  Park.  Cr.  R.  414,423;  Eason  v. 
State,  6  Baxter  (Tenn.),  466,  477;  State  v.  Potter,  18  Conn.  166;  State 
V.  Wilson,  38  Conn.  126;  O'Connor  v.  State,  9  Fla.  215;  Montague 
V.  State,  17  Fla.  662;  Bradford  v.  State,  15  Ind.  347;  State  v.  Benton,  2 
Dev.  &  B.  196;  Morgan  v.  State,  31  Ind.  193;  Clem  v.  State,  33  Ind.  418; 
Cluck  V.  State.  40  Ind.  263;  Soranton  v.  Stewart,  52  Ind.  68;  Fahuestock 
v.  State,  23  Ind.  231;  Meyer  v.  State,  19  Ark.  156;  State  v.  Spaulding,  24 
Kan.  1 ;  People  v.  Reynolds,  16  Cal.  128;  Shoelller  v.  State,  3  Wis.  823; 
People  v.  Mallon,  3  Lans.  224;  Lithgow  v.  Com.  2  Va.  Cas.  297;  Holt  v. 
People,  13  Mich.  224;  King  v.  State,  5  How.  (Miss.)  730;  State  v. 
Flower,  Walker  (Miss.),  318;  State  v.  Raymond,  11  Nev.  98;  People  v. 
King,  27  Cal.  507;  People  v.  Williams,  17  Cal.  142;  State  v.  Morea,  2 
Ala.  275;  Hudgins  v.  State,  2  Ga.  133;  State  v.  Cockman,  2  Winst. 
(N.  C.)  95;  State  v.  Ellington,  7  Ired.  L.  61;  Waters  v.  State,  51  Md. 
430;  s.  c,  8  Reporter,  560;  Little  v.  Com.,  25  Gratt.  921;  United  States 
V.  McIIenry,  6  Blatch.  503;  Brown  v.  Com.,  2  Leigh,  769;  McCune  v. 
Com.,  2  Rob.  (Va.)  771 ;  Irvine  v.  Lumbermen's  Bank,  2  Watts  &  S.  190; 
Wright  V.  State,  4  Humph.  194;  Cooper  v.  State,  16  Ohio  St.  328;  Frazier 
V.  State,  23  Ohio  St.  551  ;  State  v.  Dove,  18  Ired.  L.  469;  Hart  v.  State, 
57  Ind.  102;   State  v.  Bone,  7  Jones  L.  121;   State  v.  Collins,  70  N.  C. 


§   208.]  BIAS,  PREJUDICE,  OR  OPINION.  217 

and  floating  rumors,  of  whose  origin  the  juror  has  no  in- 
formation, and  of  whose  authenticity  he  has  no  just 
grounds  of  belief, — although  they  put  on  the  form  of  a  nar- 
rative, and  circumstantial  detail  of  the  facts, — do  not 
ordinarily  produce  such  an  impression  on  a  juror's  mind  as 
to  affect  his  impartiality.  He  may  have  formed  an  opinion 
upon  the  hypothesis  that  the  rumors  are  true  ;  but  such  im- 
pression is  usually  removed  when  the  facts  of  the  case,  as 
developed  by  the  evidence,  wholly  contradict  the  rumors.^ 

(3.)  This  Rule  to  he  guardedly  apiMed. — The  appli- 
cation of  the  foregoing  rule  must  be  closely  watched.  Not 
every  opinion  formed  upon  this  unsubstantial  basis  can  be 
readily  discarded.  Much  depends  upon  the  temperament 
of  the  individual  juror.  If  the  state  of  the  juror's  mind  is 
such  that  he  has  fully  determined  the  issue  to  be  tried,  he 
is  as  surely  disqualified  to  sit  in  the  case,  when  that  con- 
clusion is  reached  from  belief  of  the  shallowest  sort  of 
rumors,  as  when  formed  from  the  most  authentic  source. 
Moreover,  it  has  been  observed  by  conservative  judges  that 
this  rule  is  an  innovation,  and  is  therefore  to  be  strictly 
confined  within  its  proper  limits.  "The  courts  have  gone 
to  the  verge  of  the  law,"  said  Nicholson,  J.,  "in  holding- 
that  a  juror  who  has  formed  and  expressed  an  opinion  on 
mere  rumor  may  be  an  impartial  juror.  We  recognize  such 
to  be  the  settled  law,  but  we  are  not  disposed  to  go  further 
in  that  direction."  ^ 

§  208.  All  Hypothetical  Opinion. —  We  have  hitherto 
seen  that  an  opinion  based  upon  rumor  may  or  may  not  have 
a  disqualifying  effect,  according  to  the  fixedness  of  it.     To 

241;  Sanchez  v.  People,  4  Park.  Cr.  R.  535;  Union  Gold  M.  Co.  v. 
Rocky  Monntain  Xat.  Bank,  2  Col.  565;  State  v.  Johnson,  Walker,  392; 
Sam  V.  State,  13  Smed.  &  M.  189;  Lee  v.  State,  45  Miss.  114;  State  v- 
Bunger,  14  La.  An.  461;  State  v.  Lartigue,  29  La.  An.  642;  State  v. 
Hinkle,  6  Iowa,  380;  State  v.  Sater,  8  Iowa,  420;  State  v.  Lawrence,  3  8 
Iowa,  51;  McGregg  v.  State,  4  Blackf.  101;  Plummer  v.  People,  74  111. 
361;  Thompson  v.  State,  24  Ga.  297;  People  v.  McCauley,  1  Cal.  379; 
Skinner  v.  State,  53  Miss.  399;   State  v.  Hoyt,  47  Conn.  518. 

3  Payne  v.  State,  3  Hnmph.  375.     Post,  §  208. 

*Seejs»os<,  §  211. 

«  Eason  v.  State,  6  Baxter  (Tenn.),  466,  477. 


218  GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

determine  whether  the  opinion  formed  or  expressed  is  of  a 
disqualifying  character  is  frequently  a  matter  calling  tor  the 
ajjplication  of  very  nice  discrimination.  It  is  often  said 
that  an  hypothetical  opinion  will  not  disqualify  a  juror. 
Thus,  in  a  civil  case,  a  juror  was  challenged,  because  he  had 
said  that  the  defendant  was  wrong  and  the  plaintiff  was 
right ;  but  upon  examination  it  appeared  that  he  had  said 
that  he  had  no  personal  knowledge  of  the  matter  in  dis- 
pute, but  that,  if  the  reports  of  the  neighbors  were 
correct,  the  defendant  was  wrong,  and  the  plaintiff  was 
right.  This  was  held  to  be  an  hypothetical  opinion,  and,  as 
such,  not  to  affect  the  juror's  competency.^  In  the  view  of 
the  Virginia  court,  when  an  opinion  is  founded  upon  com- 
mon rumor,  the  presumption  is  that  it  is  merely  hyiDothet- 
ical,  and  it  will  be  so  considered  in  the  absence  of  evidence 
to  the  contrary.^ 

But  unless  care  be  exercised  by  the  trial  judge,  persons 
who  have  formed  absolute  and  settled  opinions  upon  the 
issue  to  be  tried  will  find  their  way  into  the  jury-box,  upon 
the  misconception  that  such  opinions  are  hypothetical 
merely.  Few  have  any  personal  knowledge  of  what  is 
heard  and  read  by  them  from  day  to  day.  In  one  sense, 
therefore,  it  may  be  said  that  all  opinions  based  upon  hear- 
say are  hypothetical.  They  are  certainly  contingent  upon 
the  truth  of  what  has  been  heard.  People,  however,  fre- 
quently form  violent  prejudices  from  hearsay  alone.  When 
called  as  a  juror,  one  entertaining  such  prejudices  does  not 
render  himself  competent  by  the  simple  statement,  *'If 
what  I  have  heard  is  true,  I  have  formed  an  opinion  ;  but  if 
not  true,  I  have  formed  none."       This  statement  is  by  no 

i  Dnrell  v.  ISIosher,  8  .Johns.  445.  See  also  Com.  v.  Hughes,  b  Rand. 
G55;  People  v.  Johnson,  2  Wheeler  Cr.  Cas.  361,  309;  People  v.  Fuller, 
2  Park.  Cr.  R.  16;  Mann  v.  Glover,  14  N.  J.  I..  195;  State  v.  Spencer, 
21  N.  J.  L.  197;  Burk  v.  State,  27  Ind.  430;  State  v.  Williams,  3  Stew. 
(Ala.)  454;  Osiander  v.  Com.,  3  Leigh,  780;  State  v.  Flower,  Walker 
(Miss.),  318;  People  v.  Murphy,  45  Cal.  137;  Jackson  v.  Com.,  23 
Gratt.  919;  Moran  v.  Com.,  9  Leigh,  651 ;  Loeffener  v.  State,  10  Ohio  St. 
598;  State  v.  Ostrander,  18  Iowa,  435;  State  v.  Hoyt,  47  Conn.  518. 

2  Jackson  v.  Com..  23  Gratt.  919.  928;  Wright  v.  Com.,  32  Gratt. 
941,  943. 


§   209.]  BIAS,  PREJUDICE,  OK  OlMNION.  219 

means  conclusive  of  a  juror's  competency.  It  docs  not 
necessarily  show  that  the  opinion  formed  is  hypothetical,  in 
the  sense  that  a  hypothetical  opinion  will  not  disqualify. 
On  the  contrary,  the  expression  may  have  been  designedly 
used  to  cover  the  rankest  prejudices,^  which  further  probing 
may  develop.  He  should  be  asked  whether  in  fact  he  be- 
lieves what  he  has  heard  to  be  true  ;  whether  that  belief  is 
of  such  a  character  as  would  prevent  its  being  removed  by 
contrary  evidence  ;  and,  in  doubtful  cases,  inquiry  might 
be  instituted  as  to  the  grounds  of  his  belief. 

§  209.  Iinpressiim  —  Meaning  of  this  Term. —  When 
one  speaks  of  an  "  imj)ression  "  upon  his  mind,  he  usually 
means  something  which  does  not  amount  to  a  lixed  or  set- 
tled opinion.^  Jurors,  however,  upon  examination  on  the 
voir  dire,,  are  apt  to  use  this  term  as  synonymous  with 
"  opinion.  "  If,  therefore,  an  analysis  of  their  "  impres- 
sions "  shows  that  they  are  in  the  nature  of  settled  opinions, 
they  must  be  treated  as  such,  and  the  juror  excluded. 
Thus,  the  New  York  Court  of  Appeals,  reviewing  the  evi- 
dence upon  the  trial  of  the  competency  of  certain  jurors, 
who  testified  to  their  "  impressions"  as  to  the  guilt  of  the 
prisoner,  said:  "  There  had  been  an  effect  produced  upon 
their  minds  which  remained,  and  which  was  so  firmly  lodged 
there  that  it  needed  a  new-comi>ig  force  to  dislodge  it.  They 
had  received  it  into  their  minds  as  true  that  the  prisoner 
was  guilty,  without  certain  knowledge  of  it,  but  upon 
proofs  which  they  held  satisfactory.  And  it  matters  not 
what  the  state  of  mind  thus  produced  is  christened,  whether 
an  opinion  or  an  impression.     There  was  existing  such  a  de- 

1  Trimble  v.  State,  2  G.  Greene.  40J ;  Armistead  v.  Com  ,  11  Leigh, 
657:  People  v.  Johnston,  46  Cal.  78;  Gardner  v.  People,  4  111.  83;  Koth- 
pchild  V.  State,  7  Tex.  App.  519;  Moses  v.  State,  10  Humph.  456;  Neely 
V.  People,  13  111.  685;  Brown  v.  State,  70Ind.  577;  State  v.  Ricks,  32  La. 
An.  1098.  But  see  Epes"  Case,  5  Gratt.  676;  Smilli  v.  Com.,  6  Gratt. 
696;  Smith  v.  Com.,  7  Gratt.  593. 

2  People  V.  Honeyman.  3  Denio,  121 ;  People  v.  Symonds,  22  Cal.  348; 
Gold  Mining  Co.  v.  Nat.  Bank,  96  U.  S.  640;  ]Sloe  v.  State,  4  How. 
(Miss.)  330;  White  v.  State. 52  Miss.  216;  State  v.  Ward,  14  La.  An. 673; 
State  V.  Coleman.  27  La.  An.  691 ;  Slate  v.  Hugel,  27  La.  An.  375;  State 

.  Medlicott.  9  Kan.  257. 


220  (JKOIINDS  OF  CHALLENGE  FOU  CAUSE.  [  CH .   XI. 

cisioii  of  miiid  :is  to  his  iriiill,  as  that  further  proofs  niu.st  he 
produt'cd,  hcfore  that  decision  would  he  chaniijed.  So  that 
we  are  justilied  in  treating  the  conclusions  of  these  jurors 
as  to  the  guilt  of  the  plaintiff  in  error  as  equivalent  to  what 
the  hooks  call  an  oj)inion,  when  treating  of  this  suhject."  ^ 

Conversely,  a  juror  may  state  upon  his  examination  that 
he  has  formed  an  "  opinion  "  as  to  the  guilt  or  innocence 
of  the  party  upon  trial,  when  in  reality  he  has  received  only 
a  slight  impression,  which  cannot  properly  have  any  dis- 
qualifying effect.  Thus,  a  man  is  slain,  and  the  defendant, 
having  been  accused  of  the  crime,  attcm})ts  to  escape,  but  is 
apprehended.  A  juror  having  heard  these  simple  facts  ex- 
presses himself  to  the  effect  that  the  accused  is  guilty  of 
the  offense  charged.  Havin":  heard  no  other  facts  in  the 
case,  it  is  obvious  that  a  positive  opinion  may  not  have  been 
formed.  A  simple  impression  only  niaj'  have  been  received, 
notwithstanding  the  juror  may  dignify  his  conclusion  as  an 
"  opinion."  •^ 

This  point  was  noticed  by  Chief  Justice  Shaw  in  the  cel- 
ebrated trial  of  Professor  Webster  for  the  murder  of  Dr. 
Parkman.  "  The  opinion  or  judgment,"  said  he,  "must 
be  something  more  than  a  vague  impression,  formed  from 
casual  observation  with  others,  or  from  reading  imperfect, 
abbreviated  newspaper  reports.  It  must  be  such  an  opinion 
upon  the  merits  of  the  question  as  would  be  likely  to  bias  or 
pervert  a  candid  judgment  upon  a  full  hearing  of  the  evi- 
dence. If  one  has  formed  what  in  some  sense  might  be 
called  an  opinion,  but  which  yet  fell  far  short  of  exciting 
any  bias  or  prejudice,  he  might  conscientiously  discharge 
his  duty  as  a  juror."  ^ 

An  "indefinite"  oi)inion  does  not  disqualify.*       Strictly 

1  GreiMitield  v.  The  People,  74  N.  Y.  277,  283. 

2  Payne  v.  The  Stute,  3  Humph.  375;  State  v.  Wilson,  38  Conn.  12G, 
138;  Norfleet  v.  The  State,  4  Sneed,  340,  343;  Palmer  v.  The  Peoi)le, 
4  Neb.  68,  75 ;  Cora.  v.  Lenox,  3  Brewst.  249 ;  United  States  v.  Keynolds,  1 
UUh,  319. 

3  Com.  V.  Webster,  5  Cush.  295,  297.  See  also  State  v.  Pike  (Sup.  Ct. 
N.  11.),  11  Am.  L.  Reg.  233,  and  particularly  the  opinion  of  Lomax,,J., 
in  Clore's  Case,  8  Gratt.  GOG,  G17. 

*  State  V.  Iloyt.  47  Conn.  518. 


§   210.]  BIAS,  PREJUDICE,  OR  OPINION.  221 

speaking,  there  is  no  such  thing  as  an  indelinite  opinion. 
Such  a  state  of  mind  may  be  more  exactly  characterized  as 
an  impression  upon  the  mind  as  to  the  existence  or  non- 
existence of  facts. 

§  210.  Particular  Expressions  of  Opinion  not  affecting 
the  Juror's  Conipetency. —  A  juror's  remarlis  upon  the 
issue  to  be  tried,  made  after  being  summoned,  although  of 
a  grossly  improper  character  and  indicative  of  tlie  strongest 
bias  in  favor  of  or  against  either  of  the  parties,  may  be  ex- 
plained by  him  as  having  been  made  in  a  spirit  of  levity,  or 
for  the  purpose  of  disqualifying  himself  for  service  in  the 
case.  Under  such  circumstances  the  competency  of  the 
juror  remains  unaffected.^ 

A  person  called  as  a  juror  in  a  trial  for  a  felony,  having 
been  challenged  peremptorily,  quitted  the  court-house,  say- 
ing, "It  is  well  I  was  rejected,  for  if  I  were  on  the  jury  I 
would  send  her  the  other  side  of  Boston."  Before  the  im- 
panelling was  completed  the  panel  of  jurors  summoned  was 
exhausted,  and,  to  complete  the  twelve,  the  counsel  for  the 
defendant,  in  ignorance  of  the  remark,  consented  to  this 
person  being  put  upon  the  jury.  After  conviction,  upon  a 
motion  for  a  new  trial,  it  was  held  that  this  expression  was 
no  indication  of  hostility,  prejudice,  or  a  fixed  opinion,  but 
due  to  embarrassment,  confusion  and  mortification  conse- 
quent upon  the  peremptory  challenge.^ 

In  another  case,  a  juror  was  shown  to  have  said  of  one 
accused  of  murder,  "Damn  him,  he  ought  to  be  hung!" 
This  fact  was  unknown  to  the  prisoner  until  after  he  had 
been  found  guilty  of  murder  in  the  second  degree.  A  new 
trial  demanded  upon  this  ground  was  refused.  It  was  held 
that  the  remark  in  question  did  not  indicate  a   deliberate 

1  John  V.  State,  16  Ga.  200;  Moughon  v.  State,  59  Ga.  308;  Cora.  v. 
Flauagan,  7  Watts  &  S.  415,  421;  Lovett  v.  State,  60  Ga.  257;  Simms  v. 
State,  8  Tex.  App.  230.  It  was  so  held  iu  the  case  of  one  of  the  jurors 
upon  the  trial  of  Aaron  Burr,  who  admitted  as  follows:  "I  met  an  in- 
timate friend,  to  whom  I  observed  that  I  had  come  to  town  with  a  hope 
of  being  placed  ou  this  jury,  and  if  I  were,  I  would  hang  Colonel  Burr 
at  once  without  further  inquiry."     Burr's  Trial,  p.  423. 

2  Com.  V.  Ilailstock,  2  Gratt.  564. 


222  GROUNDS  OF  CHALLENGE  FOIl  CAUSE.     [CH.  XI. 

opinion  of  the  prisoner's  guilt,  but  it  was  :i  h;isty  exclama- 
tion which  any  unprejudiced  man  on  hearing  of  a  murder 
might  make.  Moreover,  it  Nvas  considered  that  the  verdict 
supported  this  construction,  because  the  juror  did  not  de- 
cide that  the  prisoner  should  be  hung.^ 

The  contrary,  however,  was  decided  by  the  Tennessee 
court. "^  A  conviction  of  murder  was  reversed  where  it  ap- 
peared that,  before  the  trial,  one  of  the  jurors  had  used  this 
identical  expression.  The  court  considered  the  remark  to 
be  not  a  mere  loose  expression  founded  upon  rumor,  but 
rather  a  statement  in  the  strongest  terms  of  opinion,  con- 
viction and  prejudice.  Affidavits  of  other  jurors,  made  to 
the  effect  that  the  obnoxious  juror  was  favorable  to  the 
prisoner,  were  regarded  as  not  pertinent  to  the  issue,  which 
the  court  stated  to  be  whether  the  juror  was  competent,  not 
what  his  conduct  was  after  he  was  taken  on  the  jury. 

§  211.  Nature  of  Disqualifying-  Opinion. —  We  have 
hitherto  considered  that  character  of  opinion  which  the  law 
does  not  now  regard  as  affecting  the  juror's  competency. 
Necessarily  we  have,  at  the  same  time,  contrasted  it  with 
that  which  is  regarded  as  having  a  disqualifying  effect.  It 
is  proper  to  consider  the  latter  distinctly.  The  character 
of  opinion  which  will  form  a  subject  of  challenge  for  prin- 
cipal cause  has  been  variously  stated.  Thus,  it  must  be 
"  fixed  and  settled  ;"  ^  "  fixed  and  absolute  ;"  •*  "  fixed  and 
determined  ;"  ^  "  fixed  and  positive  ;"  ^  "decided  ;"  ^  "  sub- 
stantial," ^  or  deliberately  formed.^     Of  course  all  of  these 

1  Smith  V.  Cora.,  2  Va.  Cas.  6.  See  also  Kennedy  v.  Com.,  2  Va. 
Cas.  510. 

2  Braketield  v.  State,  1  Sueed,  215. 

3  Schoeffler  v.  State,  3  Wis.  823;  People  v.  King,  27  Cal.  507. 

*  People  V.  Bodine,  1  Den.  308;  State  v.  Howard,  17  N.  H.  192. 
5  Staup  V.  Com.,  74  Pa.  St.  458. 

8  Rafe  V.  State,  20  Ga.  60. 

^  Osiander  v.  Com.,  3  I-^eigh,  780;  Armistead  v.  Com.,  11  Leigh,  657 
Lithgow  V.  Com.,  2  Va.  Cas.  297. 

**  Sprouce  v.  Com.,  2  Va.  Cas.  375;  Jackson  v.  Com.,  23  Gratt.  919 
Thompson  v.  Updegraff,  3  W.  Va.  629;  Brown  v.  Com.,  2  Leigh,  769. 

9  suite  V.  George,  8  Rob.  (La.)  535;  State  v.  Brown, .4  La.  An.  505 
Wright  V.  state,  18  Ga.  383. 


§   211.]  BIAS,  PREJUDICE,  OR  OPINION.  223 

terms  are  intended  to  convey  one  and  the  same  idea. 
Smith,  J.,  speaking  of  the  disqualifying  opinion,  said: 
"  This,  it  is  well  settled  in  numerous  cases,  must  be  a  fixed, 
absolute,  positive,  definite,  settled,  decided,  unconditional 
opinion.  The  rule  is  uniformly  laid  down  by  the  use  of 
one  of  these  words,  or  words  of  equivalent  force.  A  con- 
ditional, contingent,  hypothetical,  indeterminate,  floating, 
indefinite,  uncertain  opinion  Avill  not  do,  nor  an  im- 
pression." ^ 

It  is  only  when  doubt  is  entertained  as  to  the  fixedness  of 
the  opinion  that  the  source  of  it  will  throw  light  upon  its 
disqualifying  character.^  When  it  is  proved  or  admitted 
that  the  mind  has  formed  an  opinion  of  this  positive  char- 
acter, the  juror  may  properly  be  excluded.  In  such  a  case 
the  consideration  of  the  source  of  the  opinion  is  quite  un- 
profitable and  unnecessary.^  That  source  may  be  of  the 
highest  authenticity,  or  it  may  be  the  shallowest  kind  of 
rumor.  If  the  former,  what  the  mind  has  once  taken  in 
and  digested  will  probably  l)e  reproduced  upon  the  trial, 
and  bring  conviction  with  redoubled  force.  If  the  latter, 
the  juror  shows  himself  to  be  a  person  of  such  marvellous 
credulity  that  the  event  of  his  adjudication  upon  the  rights 

1  People  V.  Stout,  4  Park.  Cr.  K.  71, 117.  See  also  State  v.  Kingsbury, 
58  Me.  238.  Judges  frequently  use  the  term  "  opinion  "  as  synonymous 
with  "fixed  opinion."  See  Reynolds  v.  State,  1  Ga.  222,  with  which 
decision  compare  Hudgins  v.  State,  2  Ga.  173,  180;  Maddox  v.  State, 
32  Ga.  581. 

2  Worraeley's  Case,  10  Gratt.  658,  687. 

»Boon  V.  State,  1  Ga.  631;  Logan  v.  State,  50  Miss.  2G9,  275;  Lyco- 
ming Fire  Ins.  Co.  V.  Ward,  90  111.  545;  Leach  v.  People,  53  111.  311; 
Smith  V.  Eames,  4  111.  76;  Carson  v.  State,  50  Ala.  134;  Hall  v.  State, 
51  Ala.  9;  State  v,  Davis,  14  Nev.  439,  450;  Payne  v.  State,  3  Humph, 
375;  Rice  v.  State,  1  Yerg.  432;  McGowan  v.  State,  9  Yerg-.  184;  Cole- 
man V.  Hagerman^  MS.,  cited  in  6  Cow.  564;  People  v.  Mather,  4  Wend. 
229,  244;  Greenfield  v.  People,  74  N.  Y.  277;  Norfleet  v.  State,  4  Sneed, 
340;  Sam  v.  State,  31  Miss.  480;  Goodwin  v.  Blachley,  4  Ind  438;  Meyer 
V.  State,  19  Ark.  156;  Fonts  v.  State,  7  Ohio  St.  471 ;  Armistead  v.  Com., 
11  Leigh,  657;  Staup  v.  Com.,  74  Pa.  St.  458;  People  v.  Mallon,  3  Lans. 
224;  Lithgow  v.  Com.,  2  Va.  Cas.  297;  Sprouce  v.  Com.,  2  Va.  Cas.  375; 
Conway  v.  Clinton,  1  Utah,  215;  Wright  v.  Com.,  32  Gratt.  941 ;  Jackson 
V.  Com.,  23  Gratt.  919;  Gardner  v.  People,  4  111.  84;  Neely's  Case, 
13  m.  685.    But  see  Clore's  Case,  8  Gratt.  607. 


224  GROUNDS  OF  CHALLENGE  FOR  CAUSE.  [CII.  XI, 

of  litigants    must   be    in   no  degree  founded  upon  rational 
speculation,  and,  in  general,  the  sport  of  chance.^ 

§  212.  All  Uiiqualilied  Opinioii. —  A  statute  of  Califor- 
nia declares  that  the  opinion  which  will  disqualify  must  be 
an  "  unqualified  opinion  or  belief,"  "  formed  or  expressed." 
This  rule  simplifies  the  matter  very  little,  as  the  question  at 
once  arises  in  every  case,  upon  its  own  facts,  "  What  is  an 
unqualified  opinion?  "  Upon  this  point  Baldwin,  J.,  said  : 
"  If,  for  example,  the  juror  has  read  or  heard  a  statement 
of  the  facts  of  a  case,  tliis  does  not,  of  itself,  under  this 
section  disqualify  him,  for  it  does  not  follow  that  he  has 
either  formed  or  expressed  an  '  unqualified  opinion.'  He 
may  not  have  formed  any  opinion  at  all,  certainly  not  an 
unqualified  one.  lie  may  have  received  an  impression  ;  but 
this  impression  is  not  enough  to  disqualify  him.  A  mere 
suspicion  or  inclination  of  the  mind  towards  a  conclusion 
is  not  enough  ;  the  state  of  the  mind  must  be  more  decided. 
He  must  have  reached  a  conclusion  like  that  upon  which  he 


1  Trial  of  Aaron  Burr,  p.  370;  Moses  v.  S.tate,  10  Humph.  456;  s.  c, 
11  Humph.  232;  McGowan  v.  State,  9  Yerg.  184;  Payne  v.  State, 
3  Humph.  375;  Balbo  v.  People,  SO  N.  Y.  484,  492,  493,  per  Andrews,  J. ; 
State  V.  McClear,  11  Nev.  39,  67;  Logan  v.  State,  50  Miss.  269,  275;  State 
V.  Brette,  6  La.  An.  652;  Gray  v.  People,  26  111.  344;  Armistead  y.  Com., 
11  Leigh,  657;  Maddox  v.  State,  32  Ga.  581;  Neely  v.  People,  13  111. 
685.  It  is  believed  that  the  foiegoing  is  a  fair  statement  of  the  result  of 
the  authorities.  Cases  may  be  found,  however,  Avhich  can  hardly  be 
reconciled  with  it.  Thus,  on  the  trial  of  certain  negroes  for  having 
killed  their  master,  a  juror  stated  that  he  had  heard  that  these  negroes 
had  done  the  deed;  that  he  believed  it  then,  did  at  the  time  of  the  trial, 
and  "could  not  do  otherwise,  as  he  had  the' evidence  of  the  country;" 
that  from  such  fact  he  had  formed  an  opinion  which  had  created  a  bias 
upon  his  mind  which  yet  remained.  This  juror  was  held  to  be  compe- 
tent, because  the  opinion,  belief,  bias,  etc.,  arose  from  rumor.  The 
court  seemed  to  consider  it  a  matter  of  slight  consequence  as  to  the 
character  of  the  opinion  formed,  so  long  as  it  was  not  based  upon  au- 
thentic information.  Alfred  v.  State,  2  Swan  (Tenn.),  .581.  See  also 
Major  V.  State,  4  Sneed,  597;  People  v.  Hayes,  Edm.  Sel,  Cas.  582;  Car- 
son v.  State,  50  Ala.  134;  Curley  v.  Com.,  84  Pa,  St,  151,  In  the  view  of 
these  cases,  "belief"  is  not  synonymous  with  a  "fixed  opinion,"  But 
see  Neely  v.  People,  13  111,  685;  Bales  v.  State,  63  Ala.  30,  36.  In  the 
California  Penal  Code  "  belief"  is  used  as  synonymous  with  "unquali- 
fied opinion."    Cal.  Penal  Code,  §  1074,  subsec,  8. 


•§   213.]  BJAS,  PREJUDICE,  OR  OPINION.  225 

would  be  willing  to  act  in  ordinary  matters."  ^  Under  this 
.statute  no  distinction  can  be  drawn  between  the  expression 
of  an  unqualified  opinion,  and  the  unqualified  expression  of 
an  opinion.  If  the  form  of  expression  is  unqualified,  this 
is  sufficient  to  render  the  opinion  obnoxious  to  the  statute, 
although  it  might  be  shown  upon  inquiry  that  the  opinion 
really  entertained  was  qualified  in  its  character.'^  It  has 
also  been  held  under  this  statute  that  it  matters  not  to 
which  party  the  opinion  is  favorable  or  unfavorable.  A 
juror  cannot  be  interrogated  upon  this  point.  It  is  enough 
that  the  opinion  has  been  formed  and  expressed.  Therefore 
such  a  juror  having  been  put  upon  the  jury  against  the  ob- 
jection of  the  defendant,  it  was  not  necessary,  in  order  to 
procure  a  reversal  of  a  judgment  for  the  plaintiff,  to  show 
that  the  juror  was  prejudiced  in  favor  of  the  plaintiff.^ 

§  213.  Opinion  derived  from  an  Authentic  Source. —  If 
an  opinion  formed  or  expressed  be  derived  from  a  reliable 
source,  this  is,  in  general,  a  good  ground  of  objection  to  a 
juror.*  Of  this  character  are  opinions  formed  from  hearing 
the  evidence  upon  a  former  trial  of  the  same  case,^  or  from 
conversing  with  witnesses.^     Likewise,  an  opinion  formed 


1  People  V.  Reynolds,  16  Cal.  128,  133. 

2  People  V.  Cottle,  6  Cal.  227;  People  v.  Edwards,  41  Cal.  640;  Peo- 
ple v.  Brotherton,  43  Cal.  530;  s.  c,  1  Green's  Cr.  L.  739;  People  v. 
■Gelir,  8  Cal.  359;  Ruff  v.  Rader,  2  Mont.  211.  The  juror's  statement 
that  the  opinion  is  "  unqualified  "  receives  weighty  consideration.  State 
V.  Gillick,  10  Iowa,  98. 

3  People  V.  Williams,  6  Cal.  206;  State  v.  Shelledy,  8  Iowa,  477. 
*  Troxdale  v.  State,  9  Humph.  411. 

5  Ex  parte  Vermilyea,  6  Cow.  555;  People  v.  Vermilyea,  7  Cow.  121 
Grissom  v.  State,  4  Tex.  App.  374;  Jackson  v.  Com.,  23  Gratt.  919 
Apperson  v.  Logwood,  12  Heisk.  262;  Lloyd  v.  Nourse,  2  Rawle  49 
Garthwaite  v.  Tatum,  21  Ark.  336;  Irvine  v.  Kean,  14  Serg.  &  R.  292 
State  V.  McClear,  11  Nev.  39,  67;  McGuffie  v.  State,  17  Ga.  497;  State  v. 
Webster,  13  N.  H.  491;  Studley  v.  Hall,  22  Me.  198;  Sam  v.  State,  13 
Smed.  &  M.  189. 

«  People  V.  Johnston,  46  Cal.  78;  Logan  v.  State,  50  Miss.  275;  State 
V.  George,  8  Rob.  (La.)  535,  537;  Goodwin  v.  Blachley,  4  Ind.  438; 
Bishop  V.  State,  9  Ga.  121.  But  see  State  v.  Guidry,  28  La.  An.  630. 
The  mere  circumstance  that  a  juror  has  listened  to  the  testimony,  or  has 
conversed  with  witnesses  in  a  case,  is  not  a  cause  of  challenge,  if  he  ha* 

(15) 


220  GROUNDS  OF  CHALLENGE  FOR  CAUSE.  [cil.  XI. 

Oil  the  infoniiution  of  one  who  heard  the  witnesses  testify, 
or  speak  of  the  subject,  may  be  equally  a  ground  of  objec- 
tion, if  the  juror  had  confidence  in  the  statement  as  made. 
An  opinion  so  formed  is  not  based  on  common  rumor. ^  In 
a  civil  suit,  a  juror  who,  upon  a  statement  of  facts  submit- 
ted by  one  of  the  parties,  has  expressed  an  opinion  as  to  the 
iiabilit}'  of  the  other,  may  be  regarded  as  having  derived  the 
information  upon  which  his  opinion  is  based  from  one  who, 
of  all  persons,  may  be  supposed  to  be  the  best  acquainted 
with  the  facts.^ 

§  214.  Opinion  based  upon  Reports  of  Testimony  of 
Witnesses. — There  is  no  doubt  that  mere  newspaper  re- 
ports of  the  facts  of  a  case,  civil  or  criminal,  gathered  by 
the  industry  of  reporters  from  every  conceivable  source,. 
cannot  be  regarded  as  so  "authentic"  that  an  opinion 
based  thereon,  not  positive  in  its  character,  will  have  a  dis- 
qualifying effect.^  But  how  is  it  in  regard  to  a  newspaper 
report  of  the  testimony  of  witnesses,  say  in  a  criminal  case,. 
developed  upon  a  preliminary  examination  of  the  accused, 

formed  no  opinion  based  upon  sucli  testimony  or  conversation.  Page  v. 
Com.,  27  Gratt.  954;  Thomson  v.  People,  24  111.  60;  Parchman  v.  State, 
2  Tex.  App.  228;  Shields  v.  State,  8  Tex.  App.  427;  Harper  v.  Kean,  11 
Serg.  &  R.  280;  Pay  v.  State,  2  Kan.  405;  Lycoming  Ins.  Co.  v.  Ward,. 
90  111.545;  State  v.  Ayer,  23  N.  H.  301;  Com.  v.  Reid,  S  Phila.  385; 
United  States  v.  Duff  (U.  S.  Cir.  Ct.  S.  D.  New  York,  Jan.  1881,  Bene- 
dict, D.  J.),  6  Fed.  Rep.  45.  In  one  case  the  juror  stated  upon  the  voir 
dire  that  he  had  formed  no  decided  opinion ;  that  he  had  heard  a  part  of 
the  evidence  of  one  witness,  and  had  formed  "  an  impression;"  that  if 
the  balance  of  the  testimony  "  should  run  in  that  way,"  that  impression 
would  be  confirmed ;  that,  as  far  as  the  evidence  went,  he  had  a  "de- 
cided "  opinion,  if  the  rest  did  not  run  against  it;  that  he  had  no  preju- 
dice; had  expressed  no  opinion,  and  was  prepared  to  decide  the  case 
according  to  the  evidence  which  might  be  given,  uninfluenced  by  the 
portion  which  he  had  heard.  He  was  held  to  be  a  competent  juror. 
Moran's  Case,  9  Leigh,  651.  See  also  McCune  v.  Com.,  2  Rob.  (Va.) 
771 ;  Monroe  v.  State,  23  Tex.  10. 

1  Nelms  v.  State,  13  Smed.  &  M.  500,504;  Quesenberry  v.  State,  3  Stew 
&  Port.  308;  Sam  v.  State,  13  Smed.  &  M.  189;  Ned  v.  State,  7  Porter, 
187.     But  see  Jackson  v.  Com.,  23  Gratt.  919. 

2  Rogers  v.  Rogers,  14  Wend.  131;  Young  v.  Marine  Ins.  Co.,  1 
Cranch  C.  C.  452. 

»  Ante,  §  207,  sub-sec.  2. 


§   215.]  BIAS,  PREJUDICE,  OR  OPINION.  227 

a  coroner's  inquest,  or  a  previous  trial?  Here  again,  there 
is  a  conflict  of  authority.  Thus,  the  juror  stated  that  he 
had  formed  an  opinion  as  to  the  guilt  of  the  accused 
from  reading  in  a  newspaper  the  evidence  upon  a  former 
trial ;  that  it  would  take  some  evidence  to  the  contrary  to 
remove  this  opinion ;  that  it  would  not,  however,  bias  or 
influence  his  judgment.  This  was  held  to  have  disclosed 
sufficient  to  disqualify  the  juror. ^  On  the  other  hand,  the 
Texas  Court  of  Appeals  in  a  case  of  recent  date  held  that  a 
juror  was  not  disqualified  who  stated  that  he  had  read  a 
newspaper  version  of  the  evidence  adduced  on  the  pris- 
oner's application  for  bail,  from  which  he  had  formed  an 
opinion  in  the  case  ;  that  he  had  forgotten  the  evidence, 
but  remembered  his  opinion  ;  that  he  did  not  think  that  this 
opinion  would  influence  his  verdict ;  that  his  final  decision 
would  be  controlled  by  the  evidence  ;  but  if  the  evidence 
should  be  the  same  as  he  had  read,  it  would  require  other 
evidence  to  change  his  opinion.^ 

§  215.  Opinions  which  may  he  removed  hy  Evidence. 
—  Strenuous  efforts  have  been  made  to  establish  some  test 
other  than  the  direct  interrogatory,  "  Have  you  a  fixed 
opinion?"  &c.,  which  may  show  the  condition  of  the 
juror's  mind.  Some  courts  think  they  have  found  this  in 
the  question,  "Is  your  opinion  of  such  a  character  that  it 
will  require  evidence  to  remove  it?  "  It  has  been  consid- 
ered that  if  the  state  of  the  juror's  mind  is  that  he  regards 
the  accused  as  guilty,  and  would  so  render  a  verdict  unless 
evidence  appeared  to  the  contrary;   in  other  words,  if  he 


1  Staup  V.  Com.,  74  Pa.  St.  458.  Compare  with  this  case  Myers  v.. 
Com.,  79  Pa.  St.  308.  See  also  State  v.  Clark,  42  Vt.  629;  Greenfield  v. 
People,  74  N.  Y.  277  (compare  Balbo  v.  People,  19  Hun.  424;  s.  c,  80 
N.  Y.  484);  Carroll  v.  State,  5  Neb.  31;  Smith  v.  State,  5  Neb.  181; 
Gaetig  v.  State,  66  Ind.  94.  In  Ohio,  a  juror  is  rendered  incompetent 
by  statute  who  forms  an  opinion  from  reading  reports  of  the  testimony 
of  witnesses  as  to  the  facts  of  the  case.  Laws  1872,  p.  11.  This  in- 
cludes newspaper  reports.    Frazier  v.  State,  23  Ohio  St.  551. 

2  Grissom  v.  State,  4  Tex.  App.  374.  See  also  Smith  v.  Com.,  6  Gratt. 
697;  Smith  v.  Com.,  7  Gratt.  593;  State  v.  Brown,  71  Mo.  454;  Keyn- 
olds  V.  United  States,  98  U.  S.  145;  Ortwein  v.  Com.,  76  Pa.  St.  414. 


228         GROUNDS  or  challenge  for  cause.     [cH.  XI. 

has  an  impression  of  the  defendant's  guilt  which  it  will  re- 
quire evidence  to  remove,  —  such  a  bias  of  mind  is  incom- 
patible with  the  presumption  of  innocence  which  the  law  in- 
terposes for  the  benefit  of  accused  persons.^  This  princi- 
ple has  been  carried  to  lengths  which  can  hardly  be  justi- 
fied. Thus,  upon  one  occasion  the  juror  stated  upon  the 
cross-examination  that  he  had  no  fixed  opinion,  but  quali- 
fied this  statement  by  saying,  **none  which  could  not  be 
removed  by  evidence."  It  was  held  that  he  ought  to  have 
been  excluded.' 

Other  decisions  show  that  the  test  here  noticed  is  not  infal- 
lible. Referring  to  the  language  of  Chief  Justice  Marshall 
in  a  previous  section,^  it  will  be  seen  that  he  considered  that 
impressions  w-hich  would  yield  to  the  testimonj'^  did  not  af- 
fect the  juror's  competency.  From  this  it  is  evident  that  the 
juror  might  without  impeachment  admit  the  existence  of  an 
impression  or  an  opinion  (a  synonymous  term  for  "im- 
pression," as  frequently  used  by  jurors)  which  it  would 
require  evidence  to  remove.  As  pithily  stated  in  a  late 
case,  "  The  fact  that  it  would  take  evidence  to  remove  an 
opinion  would  appear  to  be  only  the  natural  adjunct  of 
every  opinion  formed  upon  rumor."  * 

1  United  States  v.  Wilson,  Baldwin,  85;  People  v.  Mather,  4  Wend. 
229;  Eason  v.  The  State,  6  Baxter  (Tenn.),  466,  476;  Com.  v.  Kiiapp,  9 
Pick.  496;  Cotton  v.  State,  31  Miss.  504;  White  v.  Moses,  11  Cal.  68; 
Fahnestock  v.  State,  23  Ind.  231;  Armistead  v.  Coin.,  11  Leigh,  657; 
People  V.  Mallon,  3  Lans.  224;  Stephens  v.  People,  38  Mich.  739;  Peo- 
ple V.  Cottle,  6  Cal.  227;  People  v.  Gehr,  8  Cal.  359;  Conway  v.  Clinton, 
1  Utah,  215;  Rothschild  v.  State,  7  Tex.  App.  519;  United  States  v. 
Hanway,  2  Wall.  Jr.  139 ;  Ruff  v.  Rader,  2  Mont.  211 ;  Moses  v.  State,  10 
Humph.  456;  Sam  v.  State,  13Smed.  &  M.  189;  Alfred  v.  State,  37  Mies. 
296;  State  v.  Bunger,  11  La.  An.  607;  Collins  v.  People,  48  111.  145; 
Gray  v.  People,  26  111.  344. 

2  Cancemi  v.  People,  16  N.  Y.  501. 
•"»  ^n«e,  §  207,  subsec.  2. 

*  Per  Lewis,  P.  J.,  in  State  v.  Barton,  8  Mo.  App.  15,  17;  s.  c,  71  Mo. 
288.  See  also  State  v.  Core,  70  Mo.  491 ;  State  v.  Greenwade,  72  Mo. 
298;  State  v.  Davis,  29  Mo.  397;  State  v.  Carson,  50  Ala.  134;  Reynolds 
V.  United  States,  98  U.  S.  145;  Curley  v.  Com.,  84  Pa.  St.  151  (the  juror 
Lorah):  Ortwein  v.  Com.,  76  Pa.  St.  414;  Estes  v.  Richardson,  6  iVev. 
128;  People  V.  King,  27  Cal.  507;  Wilson  v.  State,  94  111.  299;  Ogle  v. 
State,  33  Miss.  383;   Thomas  v.  State,  36  Tex.  316;  O 'Mara  v.  Com.,  7i 


$   216.]  BIAS,  PREJUDICE,  OR  OPINION.  22& 

§    216.   Opinions    based    upon    Personal  Knowledge. — 

The  old  rule  as  laid  down  by  Serjeant  Hawkins  was,  that 
if  a  juryman  declared  his  opinion  beforehand  that  the  party 
was  guilty,  that  he  would  be  hanged,  or  the  like,  it  was  a 
good  cause  of  challenge.^  But  this  was  stated  with  a  marked 
qualification,  that  if  it  should  appear  that  the  juror  made 
such  declaration  from  his  knowledge  of  the  cause,  and  not 
out  of  any  ill-will  to  the  party,  it  was  no  cause  of  chal- 
lenge.^ This  was  cited  with  approval  as  late  as  1821,  by 
Lord  Tenterden,  in  RexY.  Edmunds^  and  still  later  in  this 
country.*  However  true  this  may  have  been  at  an  early 
day,  when  jurors  w^ere  summoned  rather  in  the  capacity 
of  witnesses  than  as  impartial  judges  of  the  facts  in  dispute, 
it  certainly  has  never  been  a  generally  recognized  rule  in 
this  country.  The  question  is  not,  according  to  the  spirit 
of  our  law,  whether  the  juror  feels  any  resentment  or  preju- 
dice without  cause  against  either  party,  but  whether  from 
any  cause  the  juror  has  a  bias  of  mind  that  may  disqualify 
him  from  deciding  with  strict  impartiality.^ 


Pa.  St.  424;  Myers  v.  Com.,  79  Pa.  St.  308;  State  v.  Lawrence,  38  Iowa,. 
51;  State  v.  Medlicott,  9  Kan.  257;  Guetig  v.  State,  6G  Ind.  94;  People 
V.  Brown,  48  Cal.  253;  People  v.  Welch,  49  Cal.  174. 

1  2  Hawk.  P.  C,  ch.  43,  §  28;  Cook's  Case,  13  How.  St.  Tr.  333;  Bar- 
bot's  Case,  18  How.  St.  Tr.  1233;  Layer's  Case,  16  How.  St.  Tr.  137;. 
O'Coigly's  Case,  26  How.  St.  Tr.  1227;  Home  Tooke's  Case,  25  How.  St. 
Tr.  17. 

2  2  Hawk.  P.  C,  ch.  43,  §  28.  See  also  Brooke's  Abr.,  Challenge,  pi.  90,^ 
citing  21  Hen.  VIL  29;  Bac.  Abr.,  Juries,  E.  5. 

»  4  Barn.  &  Aid.  471,  490.  See  also  Brooke's  Abr.,  Challenge,  55,  and 
Fitzherbert's  Abr.,  Challenge,  22,  citing  the  charge  of  Babington  to  the 
triors  in  the  Year  Book,  7  Hen.  VL  fol.  25;  Trials  per  Pais  (1725),  189. 

*  State  V.  Spencer,  21  N.  J.  L.  196,  198;  State  v.  Fox,  25  N.  J.  L.  566; 
Pettis  V.  Warren,  Kirby,  426.  See  also  State  v.  Howard,  17  N.  H.  171, 
192. 

*  Trial  of  Aaron  Burr,  vol.  I,  p.  414,  opinion  of  Marshall,  C.  J. ;  Blake 
T.  Millspangh,  1  Johns.  316;  Durell  v.  Mosher,  8  Johns,  445;  Ex  parte 
Vermllyea,  6  Cow.  555;  People  v.  Mather,  4  Wend.  229,  241 ;  People  v. 
Van  Alstyne,  MS.,  cited  in  6  Cow.  565;  People  v.  Verniilyea,  7  Cow. 
108;  Solander  v.  People,  2  Col.  48,  59;  Boon  v.  Georgia,  1  Ga.  618. 
622;  State  v.  Williams,  3  Stew.  454;  Waters  v.  State,  51  Md.  430;. 
Hudgins  v.  State,  2  Ga.  173. 


230         GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

If  :i  juror  is  supposed  to  have  any  information  or  knowl- 
edge respecting  the  facts  of  a  case  which  may  become  ma- 
terial to  the  decision  of  such  facts  by  the  jury,  the  proper 
practice  is  to  put  the  juror  upon  the  stand  to  testif}'  as  a 
witness.^  By  this  means  both  parties  have  the  advantage 
of  examining  him  as  to  the  sources  of  his  knowledge,  and  its 
effect  upon  the  deliberations  of  the  jurors  can  be  directed 
b}^  the  court.  The  oath  of  a  juror  obviously  forbids  that 
any  private  information  should  be  for  the  first  time  dis- 
closed in  the  jury-room,  after  the  case  has  closed,  and  the 
jury  have  retired  to  consider  their  verdict.^  In  some  States 
the  fact  that  one  summoned  as  a  juror  has  also  been  sub- 
poenaed as  a  witness  in  the  case  constitutes  a  good  cause  of 
challenge.^  And  where  this  is  the  law,  the  juror  does  not 
render  himself  competent  by  disclaiming  all  knowledge  of 
the  case  ;  *  nor  is  the  error  of  putting  such  persons  upon  the 
jury  cured  Iw  omitting  to  call  them  as  witnesses.*  It  is  no 
cause  of  challenge  to  a  juror  that  he  was  examined  as  a  wit- 
ness on  a  former  trial  of  the  same  cause  before  arbitrators  ; ' 
nor  in  a  criminal  case,  that  on  a  former  trial  of  the  indict- 
ment, the  juror  had  been  called  as  a  witness  for  the  State, 
to  testify  against  the  general  character  of  the  prisoner.' 

§  217.  Opinion  upon  Particular  Facts  involved  in  the 
Issue. —  To  disqualify  a  juror  by  reason  of  his  prejudgment 
of  the  case  to  be  tried,  it  is  not  necessary  that  he  should 
have   formed   such   judgment  upon    a  consideration  of  aU 

1  Rex  V.  Perkins,  Holt,  403;  Hauser  v.  Com.,  5  Am.  L.  Reg.  (N.  S.) 
668. 

2  Dunbar  v.   Parks,  2   Tyler,  217;  Green  v.  Hill,  4  Tex,  465;  United 
a  es  V.  Fo  urteen  Packages,  Gilp.  236;  Fellows's  Case,  5  Me.  833;  Eon- 

dea  V.  New  Orleans,  etc.  Co.,  15  La.  160. 

8  Com.  V.  Jolliffe,  7  Watts,  585;  Atkins  v.  State,  60  Ala.  45;  Comman- 
der V.  State,  60  Ala.  1;  State  v.  Underwood.  2  Overton  (Teiin.),  92; 
Hook  V.  Page,  1  Overton  (Tenn.)  250.  But  see  Fellows's  Case,  5  Me.  333; 

andy  v.  Call.  30  Me.  9;  Bell  v.  State,  44  Ala.  393;  Rondeau  v.  New- 
Orleans  Co.,  15  La.  160. 

*  "West  V.  State,  8  Tex.  App.  119. 

'  Atkins  V.  State,  60  Ala.  45. 

6  Harper  v.  Kean,  11  Serg.  &  E.  280. 

^  Fellows's  Case,  5  Me.  333. 


§    217.]  BIAS,  PREJUDICE,  OR  OPINION.  231 

the  circumstances  involved  in  the  issue.  It  is  a  sufficient 
cause  of  disqualification  that  his  obnoxious  opinion  attaches 
to  any  inaterial  fact  involved.^ 

The  nature  of  an  opinion  upon  a  portion  of  a  criminal 
<5ase  which  will  disqualify,  is  well  stated  in  a  late  decision 
of  the  Supreme  Court  of  Mississippi :  "  This  opinion  may 
exist  as  to  a  subject  so  involved  in  the  question  of  guilt  or 
innocence  that  it  cannot  well  be  separated  from  it ;  or  at  all 
■events  it  may  be  on  a  subject  about  which  the  juror's  mind 
is  to  act  in  reaching  a  conclusion,  and  so  intimately  asso- 
ciated with  the  question  of  guilt  or  innocence  that,  in  the 
ordinary  experience  of  mankind,  if  the  fact  be  as  believed 
to  exist  by  the  juror,  it  will  generally  determine  the  main 
question  of  guilt  or  innocence."^  Or,  as  stated  by 
Catron,  J,  :  "  If  the  juror  is  already  able  to  respond  to 
the  question,  if  put  to  him,  so  as  to  satisfy  his  own  con- 
science, '  Is  the  prisoner  guilty  or  is  he  innocent?'  then  he 
is  incompetent ;  but  if,  from  not  being  convinced  of  the  ex- 
istence or  non-existence  of  certain  facts,  he  is  unable  to  de- 
termine the  question,  then  he  is  competent."  ^ 

Upon  the  trial  of  an  Indian  for  the  murder  of  a  family 
of  settlers,  it  was  held  not  to  be  a  cause  of  challenge  that 
the  juror  believed  the  single  fact  that  Indians  had  mur- 
dered the  family,  having  no  opinion  as  to  the  guilt  of  the 
accused.*  Nor  in  a  capital  case  does  a  juror  necessarily 
have  an  opinion  upon  the  guilt  or  innocence  of  the  accused, 

1  Stewart  v.  State,  13  Ark.  720;  Davis  v.  Walker,  60  111.  452. 

2  Per  George,  C.  J.,  in  Brown  v.  State,  57  Miss.  424,  431;  8.  c,  10 
Cent.  L.  J.  37G.  Tiiis  was  an  indictment  for  perjury  against  one  who 
had  testified  to  a  false  alihi  upon  the  trial  of  another  for  arson.  The  ac- 
cused had  given  testimony  upon  the  trial  of  the  latter  utterly  incon- 
sistent with  his  guilt.  The  juror  had  no  douht  of  the  guilt  of  the  party 
charged  with  the  arson,  and  was  therefore  held  incompetent  to  sit  upon 
this  trial  for  perjury.  See  further  upon  this  point  the  opinion  of  Chief 
Justice  Marshall  in  the  trial  of  Aaron  Burr,  Vol.  I,  p.  417. 

s  Baxter  v.  People,  8  111.  368,  377.  See  also  State  v.  Bryan,  40  Iowa, 
379. 

*  Waukonchawneekkaw  v.  United  States,  Morris,  332.  See,  in  con- 
nection with  this  case,  Cargen  v.  People,  39  Mich.  549;  Stewart  v.  Peo- 
ple, 23  Mich.  63. 


232         GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH,  XI. 

who  believes  that  a  person  has  been  killed,  and,  in  addition 
to  that  fact,  that  the  person  on  trial  for  the  crime  did  the 
killing.  Non  constat  but  that  the  act  was  done  in  self- 
defense,  or  was  accidental.^ 

But  cases  may,  and  frequently  do,  arise  where  the  person 
convicted  of  the  fact  of  having  done  the  killing  will  be 
convicted  of  a  felonious  homicide.  These  cases  are  gen- 
erally those  where  the  connection  of  the  accused  with  the 
crime  is  established  by  circumstantial  evidence,  or  where 
the  defense  is  an  alibi.  Cases  where  the  homicide  has  been 
committed  by  a  poison,  where  it  has  -been  preceded  by  an 
act  of  burglary,  accompanied  by  robbery,  or  the  like,  may 
well  follow  under  this  rule.  Here  the  guilt  of  the  prisoner 
follows,  when  once  the  fact  of  his  having  done  the  killing 
is  fixed  upon  him.  An  opinion  in  such  a  case,  that  he  is 
the  person  who  committed  the  act,  is  tantamount  to  an 
opinion  that  he  is  guilty  of  the  crime  charged  in  the  indict- 
ment. But  in  a  case  where  the  subsequent  evidence  shows 
that  there  was  no  dispute  but  that  the  prisoner  was  the  per- 
son who  did  the  killing,  this  rule  would  not  apply,  and  it 
would  be  a  mockery  of  justice  to  grant  a  new  trial  on  the 
ground  that  a  juror  was  held  competent  who  had  stated  on 
his  voir  dire  that  he  held  such  an  opinion.  This  question, 
then,  must  in  every  case  be  tested  by  the  evidence  disclosed 
in  the  subsequent  record.  The  judge  will,  however,  gene- 
rally be  enabled  to  foresee  or  conjecture  what  the  evidence 
will  be,  and  in  such  a  case  he  will  best  exercise  a  sound 
discretion  by  rejecting  one  who  holds  such  an  opinion.  But 
even  this  rule  will  not  apply  in  all  cases  ;  for  the  facts  of 
the  guilt  of  the  person  who  did  the  killing  may  be  matters 
of  such  public  notoriety  and  universal  belief  that  no  intelli- 
gent men  can  be  found  to  act  as  jurors  who  have  not  an 
opinion  upon  the  subject. 

The  guilt  of  a  principal  is  an  essential  element  in  the 
guilt  of  an  accessory  ;    but  the  guilt  of  the  principal  being 

1  Lowenburg  v.  People,  27  N.  Y.  336;  s.  c,  5  Park.  Cr.  R.  414;. 
O'Brien  v.  People,  36  N.  Y.  276;  Bales  v.  State,  63  Ala.  30;  State  v^ 
Thompson,  9  Iowa,  188.     Contra,  State  v.  Brown,  15  Kan.  400. 


§   217.]  BIAS,  PREJUDICE,  OR  OPINION.  233 

conceded,  it  does  not  necessarily  follow  that  a  person 
charged  as  an  accessory  to  the  crime  of  the  principal  is 
guilty  also.  Hence  the  formation  and  expression  of  an 
opinion  as  to  the  guilt  of  the  principal  has  been  considered 
as  not  affecting  a  juror's  competency  to  try  an  accessory.^ 
But  this  was  lately  denied  by  the  Texas  Court  of  Appeals. 
This  court  held  that,  on  the  trial  of  an  accomplice,  who, 
under  the  code  of  Texas,  is  the  same  as  an  accessory  before 
the  fact  at  common  law,  the  judge  erred  in  refusing  to  per- 
mit the  defendant  to  question  the  jurors  touching  their 
opinion  as  to  the  guilt  or  innocence  of  the  principal.^ 

In  a  criminal  case,  it  has  been  held  to  be  no  ground  of 
challenge  that  the  juror  has  conclusively  made  up  his  mind 
as  to  the  measure  of  punishment  in  case  of  a  conviction,  of 
the  person  upon  trial. ^  In  this  connection,  too,  it  must  be 
remembered,  as  before  stated,  that  courts  will  not  ordi- 
narily sanction  the  examination  of  a  juror  in  this  form.* 

In  a  civil  suit,  when  a  juror  has  a  positive  opinion  as  to  a 
matter  connected  with  the  controversy,  which  may  be  of 
material  importance  in  the  final  determination  of  the  case, 
a  party  challenging  on  this  account  must  show  this  to  be 
one  of  the  main  questions  involved.'' 

In  an  action  upon  a  policy  of  life  insurance,  which  con- 
tained a  provision  that  if  the  insured  should  "  die  by  sui- 
cide "  the  policy  should  be  void,  the  defendant  pleaded 
that  the  insured  committed  suicide  by  drowning  himself  ; 
to  which  the  plnintiff  replied  that  the  insured  was  in- 
sane at  the  time  he  died,  and  that  the  death  was  not  his 
voluntary  and  intelligent  act.     Such  of  the  jurors  as  con" 

1  Lloyd  V.  State,  45  Ga.  57. 

*  Arnold  v.  Sfate,  9  Tex.  App.  435;  s.  c.,11  Reporter,  175. 

8  State  V.  Ward,  14  La.  Au.  673;  State  v.  Bill,  16  La.  An.  114,  over- 
ruling State  V.  George,  8  Rob.  (La.)  535. 

*A7Ue,  §  201. 

«  Weill  V.  Lucerne  M.  Co.,  11  Nev.  200;  Elbin  v.  Wilson,  33  Md.  135; 
Dew  V.  McDivitt,  31  Oliio  St.  139;  s.  c.,17  Am.  L.Reg.  621;  Wischover 
V.  German  Mutual  Fire  Ins.  Co.,  71  111.  65;  Hughes  v.  Cairo,  92  111.  339: 
King  V.  Dale,  2  111.  513;  Royston  v.  Royston,  21  Ga.  161;  State  v.  Mar- 
tin, 28  Mo.  530. 


234 


GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  II. 


sidcrcd  the  fact  of  suicide  to  be  conclusive  proof  of  in- 
sanity were  successfully  cliallenged  for  cause. ^  But  those 
who  would  not  consider  the  fact  of  suicide  as  conclusive 
evidence  of  insanity  in  all  cases,  but  only  in  some,  or  who 
Avould  require  other  and  additional  evidence  to  establish 
the  fact  of  insanity,  arc  not  subject  to  challenge  in  such  a 
case.'"* 

§  218.  Opinions  which  embody  Conclusions  of  Law. — 
The  formation  of  an  opinion  which  consists  in  nothing  more 
than  a  conclusion  of  law  upon  facts  which  have  previously 
been  presented  to  the  juror's  mind  is  obviously  no  disqual- 
ification. "On  the  contrary,"  said  Lomax,  J.,  of  the 
General  Court  of  Virginia,  "  the  court  thinks  that  a  knowl- 
edge of  the  law,  instead  of  a  disqualification,  would  be  a 
recommendation  of  the  fitness  of  the  juror.  And  although 
a  juror  may  have  taken  up  some  misconception  of  the  law 
of  the  case,  the  instruction  of  the  court  can  be  resorted  to 
for  correcting  his  error  and  affording  him  a  standard  by 
which  the  law  may  be  ascertained ;  whereas,  in  regard  to 
facts,  there  is  no  other  standard  but  the  opinions  of  the 
juror  himself."  3  A  good  illustration  is  found  in  the  trial 
of  Callender  for  the  publication  of  a  seditious  libel.  A 
juror  who  had  an  unequivocal  opinion  that  the  book  came 
within  the  sedition  law,  but  had  no  opinion  as  to  its  author- 
ship, was  held  to  be  competent.*  And,  as  stated  by  Chief 
Justice  Marshall,  upon  the  trial  of  Aaron  Burr,  "  If,  for 
example,  a  juror  had  said  that  levying  an  army  for  the  pur- 
pose of  subverting  the  government  of  the  United  States  bj 
force,  and  arraying  that  army  in  a  warlike  manner, 
nraounted  to  treason,  no  person  could   suppose  him  on  that 


'Boileau  v.  Life  Ins.  Co.,  9  Phila.  218;  Hiatt  v.  Mutual  Life  Ins. 
Co.,  2  Dill.  672,  note. 

2  Hagadorn  v.  Connecticut  Mutual  Ins.  Co.,  22  Hun,  249. 

3  Heath  v.  Com.,  1  Rob.  (Va.)  735,  742;  Pettis  v.  Warren,  Kirby,  426; 
Com.  V.  Abbott,  13  Met.  120;  Hughes  v.  Cairo,  92  111.  339;  Thrall  v. 
Lincoln,  28  Vt.  356.  But  contra^  see  United  States  v.  Hanway,  2  Wall. 
Jr.  1.39;  Blake  v.  Millspaugh,  1  Johns.  316. 

*  Callenuer'8  Case,  Wharton,  St.  Tr.  697. 


§   219.]  BIAS,  PREJUDICE,  OR  OPINION.  235 

account  unfit  to  serve  on  the  jury.  The  opinion  would  be 
one  in  which  all  must  concur."  ^ 

§  219.   Disqualifyiuj?  Effect  of,  when  indicative  of  Bias. 

—  Such  an  opinion,  however,  may  be  erroneous,  and  of 
that  fixed  and  unalterable  character  that  the  juror  will  be 
plainly  disqualified.^  Thus,  in  an  action  against  a  sheriff 
for  trespass,  where  the  defendant  justified  under  a  distress 
warrant  for  rent  in  arrear,  issued  by  the  landlord,  a  juror 
was  properly  rejected  who  belonged  to  an  anti-rent  asso- 
ciation, w^ho  had  presided  at  a  meeting  of  such  association, 
and  had  expressed  the  opinion  that  the  landlord  had  no 
title  to  rent,  although  the  laws  might  enable  him  to  collect 
it,  and  that  he  himself  would  pay  no  more  rent  until  the 
question  of  title  was  settled.^  But  the  belief  that  the  law 
under  which  an  action  is  brought  "  is  a  good  one,"  is  not 
even  proper  evidence  for  the  consideration  of  the  triors 
upon  a  challenge  to  the  favor.* 

Jurors  may  be  examined  as  to  their  prejudices  against 
the  enforcement  of  a  law  under  which  an  indictment  has 
been  framed.'^  Thus,  where  a  defendant  is  on  trial  for  the 
crime  of  polygamy,  a  juror  who  belongs  to  the  Mormon 
Church,  and  believes  that  polygamy  is  a  direct  command 
from  God,  and  consequently  above  the  laws  of  man,  should 
be  excluded  from  sitting  in  the  case.^  On  the  trial  of  an 
indictment  for  a  riot  at  a  meeting  for  the  consideration  of 
a  public  measure,  the  prosecution  challenged  two  jurors  on 
the  ground  that  they  were  inhabitants  of  the  town  affected 
by  the  measure  in  question,  and  had  taken  an  active  part 
in  opposing  the  law.  Coleridge,  J.,  at  nisi  prius  thought 
that  a  person  who  had  taken  an  active  part  on  either  side 
with  respect  to  a  measure  which  had  caused  so  much  ex- 
citement could  not  be  regarded  as  an  indifferent  juror.^ 

1  Burr's  Trial,  Vol.  I,  p.  418. 

2  Corn.  V.  Anstiu,  7  Gray,  51 ;  State  v.  Davie,  14  Nev.  439,  450;  Com. 
V.  Buzzell,  16  Pick.  153. 

'Lord  V.  Brown,  5  Den.  345. 

*  McNall  V.  MoClure,  1  Lans.  32. 

«  Pierce  v.  State,  13  N.  H.  536. 

«  Miles  v.  United  States,  103  U.  S.  304;   s.  c,  2  Utah,  19. 

^neg.  V.  Swain,  2  Lewin  C.  C.  IIG;  s.  c,  2  Mood.  &  Eob.  112. 


236        GROUNDS  OF  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

§  220.  A  Disqualifying  Opinion  cannot  be  laid  aside. — 

When  it  is  conceded  or  i)rovod  tli:it  the  juror  holds  such  an 
opinion  as  disqualifies  him  from  sitting  in  the  case,  the  in- 
quiry as  to  the  juror's  competency  is  ended,  and  the  juror 
must  be  rejected."^  The  rule  settled  by  all  the  authorities  is 
that  no  inquiry  can  be  tolerated  whether  the  firmness  of  the 
man  may  not  enable  him  to  Lnve  a  true  verdict  upon  his 
oath,  notwithstanding  an  existing  opinion  of  a  disqualify- 
ing character.  As  observed  by  Chief  Justice  Marshall » 
upon  the  trial  of  Aaron  Burr,  "  lie  may  declare  that 
notwithstanding  these  prejudices  he  is  determined  to  listen 
to  the  evidence  and  be  gov(?rned  by  it ;  but  the  law 
will  not  trust  him.  *  *  *  j^g  yyill  listen  with  more 
favor  to  that  testimony  which  confirms,  than  to  that  which 
would  change  his  opinion.  It  is  not  to  be  expected  that  he 
will  weigh  evidence  or  argument  as  fau'ly  as  a  man  whose 
judgment  is  not  made  up  in  the  case."  ^ 

In  an  early  Tennessee  case  the  bill  of  exceptions  showed 
that  the  jurors,  after  admitting  the  existence  of  disqualify- 
ing opmions,  were,  against  the  objection  of  the  prisoner, 
asked  the  question,  "  Do  you  think,  notwithstanding  your 
opinion,  you  are  in  a  condition  to  try  this  cause  impar- 
tially?"    Peck,  J.,  o})served  upon  this  record:  "What  is 

2  Com.  V.  Lesher,  17  Serg.  &  R.  ir,5,  156;  United  States  v.  Wilson^ 
Bald.  C.  C,  84;  Rothschild  v.  State,  7  Tex.  App.  519;  People  v.  John- 
ston, 46  Cal.  78. 

3  Burr's  Trial,  vol.  I,  p.  416.  See  also  Fonts  v.  State,  7  Ohio  St.  471 ; 
Trimble  v.  State,  2  G.  Greene,  404;  Staup  v.  Com.,  74  Pa.  St.  4.')8;  Peo])le 
V.  Gehr,  8  Cal.  3.59;  Baker  v.  Harris,  1  Winst.  (N.  C.)  277;  Conway  v. 
Clinton,  1  Utah,  215;  Cotton  v.  State.  32  Tex.  614;  Black  v.  State,  42 
Tex.  377;  Goodwin  v.  Blachley,  4  Ind.  438;  Irvine  v.  Kean,  14  Serg.  & 
R.  292;  Sam  v.  State,  13  Smed.  &  M.  189,  194;  Alfred  v.  State,  37  Miss. 
296;  Logan  v.  State,  50  Miss.  275;  State  v.  Bunger,  11  La.  An.  607; 
Eason  v.  State,  6  Baxter  (Tenn.),  466,  476;  People  v.  Weil,  40  Cal.  268; 
Stephens  v.  People,  38  Mich.  739.  It  is  held  to  be  a  gross  abuse  of  dis- 
cretion for  the  trial  judge,  upon  the  examination  of  a  juror,  to  confine 
the  counsel  to  the  single  Inquiry  whether  the  juror  can  or  cannot  try  the 
case,  and  render  a  verdict  under  the  law  as  declared  by  the  court  and 
upon  the  evidence  adduced  upon  the  trial,  without  regard  to  any  pre- 
viously formed  opinions.  People  v.  Woods,  29  Cal.  635.  But  see  Com. 
V.  Morrow,  9  Phila.  583. 


§  221.]  BIAS,  PREJUDICE,  OR  OPINION.  237 

the  condition  of  a  juror  when  such  a  question  is  propounded? 
He  will  feel  it  as  an  appeal  made  to  his  pride  and  magna- 
nimity. He  will  naturally  imagine  he  can.  Nay,  he  will 
suppose  he  has  already  divested  himself  of  his  preposses- 
sions, and  he  will  answer  in  the  affirmative.  But  who  that 
has  taken  the  slightest  view  of  human  nature  can  help  see- 
ing that,  immediately  on  hearing  a  repetition  of  the  same 
evidence  which  first  raised  his  prepossessions,  they  will  re- 
turn upon  him  ;  or,  placing  himself  upon  his  resolution,  he 
will  err  on  the  other  side,  and  reject  the  evidence  which, 
but  for  the  appeal  to  his  pride,  would  have  had  its  due 
weight."^ 

§  221.  A  Change  of  Opinion. —  Can  a  juror,  after  having 
formed  a  positive  opinion  upon  the  facts  to  be  tried,  restore 
his  competency  by  an  avowal  upon  the  voir  dire  that  he  no 
longer  entertains  such  an  opinion?  It  is  believed  that  the 
old  authorities  furnish  no  information  upon  this  point. 
Under  the  rule  of  the  common  law,  as  expressed  in  the  pre- 
vious section,  the  Texas  Court  of  Appeals  concludes  that,  in 
the  investigation  of  the  juror's  competency,  "the  inquiry 

1  Rice  V.  The  State,  1  Yerg.  432,  434.  The  penetrating  mind  of  Aaron 
Burr,  when  on  trial  for  treason  against  the  United  States,  appreciated 
the  force  of  this  last  proposition,  as  will  be  seen  from  the  following  ex- 
tract from  the  report  of  his  trial :  "  Mr.  Bott  (a  juror)  :  •  I  have  gone  as 
far  as  to  declare  that  Col.  Burr  ought  to  be  hanged.'  Mr.  Burr:  '  Do 
you  think  that  such  declarations  would  now  influence  your  judgment? 
Would  not  the  evidence  alter  your  opinion?'  Mr.  Bott:  '  Human  nat- 
ure is  very  fi*ail.  I  know  that  the  evidence  ought,  but  it  might  or  might 
not  influence  me.  I  have  expressed  myself  in  this  manner,  perhaps, 
within  a  fortnight;  and  I  do  not  consider  myself  a  proper  juryman.' 
Mr.  Burr:'  *  *  ♦  1  will  take  Mr.  Bott  under  the  belief  that  he  will 
do  me  justice.'  "  1  Burr's  Trial,  426.  In  State  v.  Allen,  4G  Conn.  531, 
u  juror,  having  been  found  to  be  incompetent  by  reason  of  his  having 
expressed  an  opinion  that  the  defendant  was  guilty,  as  charged  in  the 
indictment,  was  excluded.  Afterwards,  the  counsel  for  the  defendant 
consented  to  waive  the  ground  of  challenge,  and  asked  that  he  be  placed 
upon  the  jury.  This  the  court  discreetly  refused  to  do,  and  the  Supreme 
Court  held  that  the  offer  came  too  late,  Beardsley,  J.,  saying :  "  He  (the 
juror)  would  regard  himself  as  well  as  the  accused  as  on  trial,  and  his 
verdict  would  be  quite  as  likely  to  be  shaped  by  personal  considerations 
and  a  desire  to  vindicate  himself,  as  by  the  evidence  and  the  law  in  the 
case."    Ibid.^  p.  549. 


238         GROUNDS  or  challenge  for  cause.    [CH.  XI. 

is  addressed  exclusively  to  the  present  condition  of  the 
juror's  mind,"  ^  and  hence  that  "it  is  wholly  immaterial 
what  conclusion  may  have  found  a  lodgment  in  his  mind  a 
mouth  or  a  year  before  trial,  l)ut  the  sole  question  for  de- 
termination l)y  the  judge,  who  is  constituted  the  trior  under 
our  law,  is,  '  Has  the  juror  a  present  o})inion  or  conclusion 
in  his  mind  that  would  iutluence  his  action  in  finding  a  ver- 
dict?' If  it  does  not  clearly  appear  that  he  has  not,  he 
should  be  rejected  ;  otherwise,  he  ought  to  be  adjudged 
competent.  The  hiw  recoguizes  what  is  mauifcst  in  our 
daily  experience,  to  wit,  that  few  minds  are  inflexible,  and 
that  time  and  information  often  work  serious  modifications 
in  our  preconceived  notions,  and  hence  it  limits  the  inquiiy 
as  stated.  A  juror  who  had  formed  an  opinion,  but  had 
discarded  it  before  trial,  is  equally  competent  in  law  with 
one  who  had  never  formed  any  opiuion  w^hatsoever."  ^ 

But  after  an  avowal  of  a  positive  opinion  the  juror  ought 
not  readily  to  be  permitted  to  gainsay  it  at  the  time  of  the 
trial.  The  Supreme  Court  of  Tennessee  held  that  the  bare 
statement  of  the  juror  that,  on  a  former  occasion,  he  had 
expressed  a  positive  opinion  as  to  the  defendant's  guilt,  but 
that  he  now  had  no  opinion,  was  not  enough.  "The 
juror's  statement  at  the  trial,"  said  McKinney,  J.,  "that 
he  had  no  opinion,  standing  as  it  does  in  this  record, 
wholly  unexplained,  is  inconsistent  and  absurd,  if  not  in- 
credible. True,  his  mind  may  have  been  disabused  of  the 
first  impression  by  subsequent  occurrences,  in  which  case 
his  competency  might  have  been  restored  ;  but  this  ought  to 
have  been  satisfactorily  explained."^ 

§  222.  The  Disqualification  arising  from  a  Precon- 
ceived Opinion  removed  by  Statute. —  From  the  foregoing 
sections  it  will  be  seen  that  the  application  of  the  rule,  dis- 
qualifying jurors  because  of  opinions  expressed  or  formed, 
is    frequently   a   matter   of ]  great   nicety.  ^Moreover,    the 

1  Rothschild  v.  State,  7  Tex.  App.  544:  Grissom  v.  State,  8  Tex.  App. 
386,  396. 

2  Grissom  v.  State,  supra. 

»  Norfleet  ▼.  State,  4  Sneed,  340,  346. 


§    222.]  BIAS,  PREJUDICE,  OR  OPINION.  239 

present  cheap,  and  therefore  universal,  means  of  dissem- 
inating information  in  regard  to  crimes  of  a  startling  char- 
acter so  fill  the  reading  public  with  a  knowledge  of  the  facts, 
that  to  form  an  opinion  in  regard  to  the  guilt  of  accused 
persons  is  the  almost  involuntary  operation  of  intelligent 
minds.  Courts  have  been  frequently  driven  to  the  illiterate 
and  hopelessly  ignorant  portions  of  the  community  as  min- 
isters of  justice.  Again  and  again  the  public  have  been 
confronted  with  the  striking  paradox,  that,  the  more  heinous 
the  crime,  the  less  likely  the  criminal  is  to  be  tried  by  an 
intelligent  jury,  and  therefore  the  greater  the  probability 
that  he  will  escape  punishment.^ 


1  See  People  v.  Bodine,  Edm.  Sel.  Cas.  36;  s.  c,  1  Den,  281.  In  this 
case  the  prisoner  was  indicted  in  Kichmond  County,  New  York,  for  the 
murder  of  her  brother's  wife  and  his  cliild ;  for  ai-sou  of  his  inliabited 
dwelling-house;  for  burglary;  and  for  receiving  stolen  goods.  The 
heinousness  of  the  various  crimes  (which  were  all  one  transaction)  at- 
tracted universal  attention  at  the  time,  as  well  as  the  varions  attempts  to 
procure  a  trial.  The  prisoner  was  tried  on  one  of  the  indictments  for 
murder,  in  the  countj^  of  Kichmond,  and  the  jury,  not  agreeing,  were 
discharged.  Another  attempt  was  made  to  try  her  upon  the  same  in- 
dictment in  that  county;  but  this  failed,  because  of  the  impracticability 
of  procuring  a  jury.  Tlie  indictments  were  then  all  removed  into  the 
Supreme  (Jourt,  and  by  that  court  sent  down  to  the  New  York  circuit  to 
be  tried.  Being  arraigned  on  the  indictment  for  murder,  she  was  con- 
Ticted;  but  the  judgment  was  reversed  for  errors  of  the  circuit  judge  in 
disallowing  certain  questions  to  be  put  to  the  jurors  upon  challenges  to 
the  favor,  with  reference  to  their  impressions  as  to  the  guilt  or  innocence 
of  the  accused.  The  Supreme  Court,  in  reversing  this  judgment,  de- 
clared a  rule  affording  a  very  wide  range  of  examination  as  to  impres- 
sions of  guilt,  etc.  The  case  had  bj^  this  time  achieved  a  widespread 
notoriety  in  the  New  York  circuit.  Upon  the  second  trial  an  extraor- 
dinary spectacle  ensued.  Three  weeks  were  consumed  In  an  effort  to 
obtain  a  jury,  and  over  six  thousand  jurors  were  summoned;  about  four 
thousand  were  tried  on  challenges,  and  all  set  aside  except  ten.  Then 
the  counsel  for  the  accused  moved  the  court  to  suspend  the  trial  and  dis- 
chai-ge  the  jury  as  far  as  procured,  and  grant  them  the  necessary  cer- 
tificate to  lay  before  the  Supreme  Court,  in  order  to  procure  a  change  of 
venue.  The  district  attorney  did  not  object,  and  the  court  granted  tlie 
motion.  The  venue  was  afterwards  changed  to  the  county  of  Orange, 
where  the  prisoner  was  tried  and  acquitted  of  the  charge  of  murder.  A 
nolle  prosequi  was  then  entered  on  each  of  the  other  indictments,  and 
she  was  set  at  liberty. 


240  GROUNDS  OF  CHALLENGE  FOR  CAUSE.  [CH.  XI. 

This  state  of  affairs  is  too  odious  to  be  of  lengthy  dura- 
tion. A  revulsion  against  the  prevailing  rule  has,  in  some 
States,  found  positive  expression.  In  1872  it  was  provided 
by  a  statute  of  New  York  that  "  the  ])revious  formation  or 
expression  of  an  opinion  or  impression,  in  reference  to  the 
circumstances  upon  which  any  criminal  action  at  law  is 
based,  or  in  reference  to  the  guilt  or  innocence  of  the  pris- 
oner, or  a  present  oj^inion  or  impression  in  reference 
thereto,  shall  not  be  a  suJQScient  ground  of  challenge  for 
principal  cause  to  any  person  who  is  otherwise  legally  qual- 
ified to  serve  as  a  juror  upon  the  trial  of  such  action  ;  pro- 
vided the  person  proposed  as  a  juror,  who  may  have  formed 
or  expressed,  or  has  such  opinion  or  impression  as  afore- 
said, shall  declare  on  oath  that  he  verily  believes  that  he 
can  render  an  impartial  verdict,  according  to  the  evidence 
submitted  to  the  jury  on  such  trial,  and  that  such  pre- 
viously formed  opinion  or  impression  will  not  bias  or  influ- 
ence his  verdict ;  and  provided  the  court  shall  be  satisfied 
that  the  person  so  proposed  as  a  juror  does  not  entertain 
such  a  present  opinion  as  would  influence  his  verdict  as  a 
juror."  ^ 

§  223.  Constitutionality  of  the  Tfew  York  Statute  of 
1872. —  The  constitutionality  of  this  statute  was  unsuccess- 
fully assailed  in  the  first  case  where  it  was  brought  to  the 
attention  of  the  courts.'     The  ground  upon  which  it  was 


»  Laws  N.  Y.  1872,  ch.  475,  p.  1133.  The  foregoing,  it  will  be  noticed, 
has  reference  only  to  the  challenge  for  principal  cause  on  this  account. 
The  challenge  to  the  favor  remains  unaffected  by  the  act.  A  weak  form 
of  this  statute  was  enacted  the  year  following  in  Michigan  (Laws  Mich. 
1873,  Act.  117,  p.  162.)  It  provides  that  the  previous  formation  or  ex- 
pression of  an  opinion,  not  being  positive  in  its  character,  or  not  being 
based  upon  personal  knowledge  of  the  facts  in  the  case,  shall  not  be  a 
sufficient  ground  of  challenge  for  principal  cause,  etc.;  concluding  with 
the  same  proviso  as  in  the  New  York  statute.  It  is  difficult  to  imagme 
for  what  reason  the  Michigan  statute  was  passed.  It  made  no  change 
in  the  existing  law,  and  has  been  interpreted  as  simply  declaratory  of  a 
previouslj'  well-settled  rule,  Stephens  v.  People,  38  Mich.  739;  Ulrich 
v.  People,  39  Mich.  245.  See  also  Palmer  v.  People,  4  Neb.  68,  75,  con- 
struing a  similar  statute  of  Nebraska. 

»  Stokes  V.  People,  53  N.  Y.  164. 


§   224,]  BIAS,  PREJUDICE,  OR  OPINION.  241 

attacked  was  that  it  impaired  the  common  hiw  and  constitu- 
tional right  of  an  accused  person  to  trial  by  an  impartial 
jury.  The  Court  of  Appeals  held  that  it  did  not.  Gkover, 
J.,  clearly  pointed  out  that  the  impartiality  of  the  individ- 
ual juror  was  carefully  hedged  about  by  several  circum- 
stances :  1st.  The  juror's  sworn  statement  that  he  could 
lay  aside  the  opinion  formed,  and  render  a  true  verdict 
according  to  the  evidence  ;  2d,  the  judgment  of  the  court 
as  to  the  juror's  ability  to  do  this;^  3d,  the  challenge  to 
the  favor,  after  all.  '<  While  the  constitution,"  said  he, 
*'  secures  the  right  of  trial  by  an  impartial  jury,  the  mode 
of  procuring  and  impanelling  such  jury  is  regulated  by 
law,  either  common  or  statutory,  principally  the  latter  ;  and 
it  is  within  the  power  of  the  legislature  to  make,  from  time 
to  time,  such  changes  in  the  law  as  it  may  deem  expedient, 
taking  care  to  preserve  the  right  of  trial  by  an  impartial 
jury."^ 

§  224.  Construction  of  this  Statute. —  In  construing  the 
New  York  statute,  the  object  of  the  law  has  (except  in  a 
single  instance)  been  kept  clearly  in  view.  The  statute  was 
designed  to  be  a  distinct  and  radical  departure  from  the 
rule  which  has  grown  up  in  this  country,  that  a  juror  who 
has  formed  a  fixed  and  settled  opinion  of  the  guilt  or  inno- 
cence of  a  prisoner  is  subject  to  a  challenge  for  cause,  no 
matter  how  or  upon  what  the  opinion  is  founded,  and  re- 
gardless, too,  of  the  juror's  statement,  upon  oath,  that 
he  could  decide  the  case    fairly   and  impartially  upon  the 


1  A  statute  is  unconstitutional  wliieli  provides  tliat  a  juror  shall  be 
■competent  in  a  criminal  case,  notwithstandino^  the  formation  or  expres- 
sion of  an  opinion  as  to  the  ,o-uilt  or  innocence  of  tlie  accused,  who  can 
say  upon  oatli  that  upon  the  law  and  testimony  he  can  give  the  accused 
a  fair  and  impartial  trial,  the  juror's  statement  being  conclusive  of  his 
competency.  Eason  v.  State,  G  Baxter  (Tenn.),  466.  The  mind  of  the 
court  must  be  satisfied  that  the  challenged  juror  is  free  from  bias  and 
prejudice,  and  not  merely  that  of  the  juror  himself.  Morton  v.  State, 
1  Kan.  468;  Cooper  v.  State,  16  Ohio,  St.  328,  332;  People  v.  Woods, 
29  Cal.  135.     But  see  Thomas  v.  State,  36  Tex.  315. 

2  53  N.  Y.  173  To  the  same  effect  see  Jones  v.  People,  2  Colo. 
351 ;  Cooper  v.  State,  16  Ohio  St.  328. 

(16) 


242  GROUNDS  OF  CHALLENGE  FOR  CAUSE.  [CH.  XI. 

evidence,  without  bias  or  prejudice  from  tlic  opinion  |)rc- 
viously  formed.' 

The  statute  was  tirst  construed  in  Thomas  v.  The  People.^ 
The  juror  objected  to  in  this  case  had  formed  an  opinion  in 
reference  to  the  guilt  of  the  accused,  whicli  opinion  would 
require  evidence  to  remove  it.  This,  it  will  be  seen,  was 
one  of  the  most  familiar  tests  of  disqualification  under  the 
previous  law.^  But  as  the  juror  was  able  to  state  that  he 
could  decide  the  case  upon  the  evidence,  rendering  an  im- 
partial verdict,  unbiassed  by  such  opinion,  the  challenge 
was  held  to  have  been  correctly  overruled.  In  another 
case  the  juror  was  held  to  be  qualified,  although  he  testified 
that  he  had  formed  and  expressed  an  opinion  upon  the  guilt 
of  the  accused,  from  reading  an  account  of  a  former  trial  ; 
that  he  would  commence  the  trial  with  an  impression  on 
his  mind  resulting  from  that  opinion,  which  might  influ- 
ence his  verdict  contrary  to  his  intention  or  expectation, 
although  he  thought  he  could  decide  the  case  impartially 
upon  the  evidence.*. 

On  the  trial  of  the  negro  Chastine  Cox  for  the  murder  of 
Mrs.  Hull,  which  lately  attracted  so  much  attention,  a  juror 
was  called  who  testified  upon  the  voii^  dire  that  he  had  read 
of  the  case  in  the  newspapers,  and  had  formed  a  decided 
opinion  as  to  the  guilt  of  the  accused,  which  it  would  require 
evidence  to  remove,  and  that,  if  sworn  as  a  juror,  he  would 
enter  the  box  with  this  opinion  still  existing ;  that  he  gen- 
erally believed  what  he  read  in  the  newspapers,  if  it  sounded 
reasonable,  until  contradicted  ;  that,  if  accepted  as  a  juror, 
he  did  not  think  he  would  permit  wdiat  he  had  read  to  affect 
his  judgment ;  that  he  verily  believed  he  could  decide  the 

1  Balbo  V.  People,  SON.  Y.  484,  492. 

■^  67  N.  Y.  218. 

»  Ante,  §  215. 

< Phelps  V.  People,  6  Ilun,  401 ;  .s-.  c,  72  N.  Y.  334.  Under  a  statute  of 
Nebraska,  similar  to  that  of  New  York,  a  juror  was  held  to  have  been 
properly  excluded  who,  after  disclaiming  that  he  had  formed  an  opinion, 
said  he  thought  he  could  n^nder  a  fair  and  impartial  verdict,  but  added, 
"  I  might  possibly  lean  a  little  the  other  way."  Curry  v.  State,  4  Neb. 
545. 


§    224.]  BIAS,  PREJUDICE,  OR  OPINION.  243 

case  according  to  the  evidence  produced  in  court,  and  upon 
that  alone  ;  that  his  opinion  was  dependent  upon  the  truth 
of  what  he  had  read  ;  that  he  did  not  know  whether  the  ac- 
count was  true  or  not ;  that  there  was  nothing  to  keep  the 
opinion  in  his  mind  wlien  the  trial  had  begun  and  evidence 
had  been  introduced  ;  that,  from  the  statements  in  the  news- 
papers he  believed,  in  a  general  way,  that  the  prisoner  was 
guilty.  Upon  a  challenge  to  the  favor  this  juror  was  held 
to  be  competent.^ 

The  liberal  construction  of  this  statute  received  a  check 
in  Greenfield  v.  The  People.'^  In  this  case,  the  Court  of 
Appeals,  reversing  the  decision  of  the  Supreme  Court,^ 
held  that  one  who  has  formed  an  opinion  or  impression 
from  the  reading  of  the  report,  partial  or  complete,  of  the 
criminatory  testimony  against  a  prisoner  on  a  former  trial, 
however  strong  his  belief  and  purpose  that  he  will  decide 
the  case  on  the  evidence  to  be  adduced  before  him  as  a 
juror,  and  will  give  an  impartial  verdict  thereon,  cannot  be 
readily  received  as  a  juror,  indifferent  towards  the  prisoner 
and  wholly  uncommitted.^ 

In  a  later  case,  however,  where  the  court  considered 
a  challenge  under  this  statute,*  Greenfield  v.  People^  was 
unsatisfactorily  distinguished,  and  it  is  safe  to  say  that  its 
authority  is  in  some  degree  qualified.  This  was  an  indict- 
ment for  murder.  A  juror  testified  that,  at  the  time  of  the 
homicide,  he  had  read  an  account  of  it  m  the  newspapers, 
which  account,  he  thought,  was  tlie  testimony  taken  before 
the  coroner.      From  this  he  thought  his  present  opinion  in 


1  Coxv.  People,  19  Hun,  430;  s.  c,  affirmed,  80  N.  Y,  500.  See  also 
Muuke  V.  People,  17  Hun,  410;  Balbo  v.  People,  19  Hun,  424;  s.  c,  af- 
tirmed,80  N.  Y.  484;  Pender  v.  People,  18  Hun,  560. 

2  74  X.  Y.  227. 

3  13  Hun,  242. 

••  See  in  connection  with  this  case  Carroll  v.  State,  5  Xeb.  32;  Smith 
V.  State,  5  Neb.  181 ;  Rice  v.  State,  1  Yerg.  432 ;  MaGuffie  v.  State,  17  Ga. 
497;  Rollins  v.  Ames,  2  N.  H.  349;  Clore's  Case,  8  Gratt.  606,  619;  Ste- 
phens V.  People,  38 Mich.  739. 

5  Balbo  V,  People,  19  Hun,  424;  s.  c,  80  N.  Y.  484. 

«  74  X.  Y.  227. 


^44         GROUNDS  or  CHALLENGE  FOR  CAUSE.     [CH.  XI. 

regard  to  tlic  guilt  of  the  accused  was  formed.  That  opin- 
ion he  stated,  in  answer  to  a  leading  question,  to  be  "  posi- 
tive, clearly  marked,"  and  still  retained.  To  the  question 
whether  it  would  require  "strong"  evidence  to  remove 
that  opinion,  he  answered  that  it  would.  In  another  i)art 
of  his  testimony,  however,  he  said  that  he  would  believe  a 
newspaper  contradiction  of  what  he  had  read  as  readily  as 
he  did  the  original  account ;  that  he  made  little  distinction 
between  an  impression  and  an  opinion,  and  did  not  know 
that  he  had  anything  more  than  an  impression  in  the  mat- 
ter :  that  while  he  might  have  this  opinion  in  his  mind,  he 
did  not  believe  it  would  bias  or  influence  him  upon  the  con- 
sideration of  evidence  in  the  case,  to  which  he  would  give 
full  weight  and  effect.  The  juror  was  held  to  be  compe- 
tent.^ 

'  111  the  Supreme  Court  it  was  admitted  that  several  statements  of  the 
juror,  if  detached  and  considered  by  themselves,  would  bring  the  case 
within  Greenfield  V.  People,  s?<j)ra;  yet,  considering  the  whole  testimony, 
the  counsel  for  the  accused  were  held  to  have  failed  to  establish  that 
the  juror  was  not  legallj^  competent.  19  Hun,  424,  427.  This  view 
"\vas  adopted  by  the  Court  of  Appeals,  80  N.  Y.  484. 


CH.  XII,]  TRIAL  OF  CHALLENGES.  245 


CHAPTER  XII. 


OF  THE  TRIAL  OF  CHALLENGES. 

SECTION. 

231.  Mode  of  Challenging.  ^  1 

232.  Proceediugs  upon  Challenges. 

233.  The  Tribunal  for  the  Trial. 

234.  Oath  of  the  Triors. 

235.  Triors  to  examine  all  Questions  of  Fact. 

236.  Province  of  Court  upon  Challenge  to  the  Favor. 

237.  Triors'  Finding  according  to  their  Discretion  and  Final. 

238.  The  Court  as  a  Substitute  for  Triors. 

239.  Disagreement  of  Triors. 

240.  Burden  of  Proof. 

241.  Examination  of  the  Juror  upon  the  Voir  Dire. 

242.  Challenge  precedes  Examination. 

243.  Province  of  Court  upon  Examination. 

244.  Jurors  to  be  examined  singly. 

245.  Questions  tending  to  degrade  the  Juror. 

(1.)  The  General  Rule. 

(2.)  Questions  as  to  Expressions  of  Opinion  that  the  Ac- 
cused is  Guilty. 

(3.)  Questions  as  to  Expressions  of  Opinion  on  the  Merits  in 
Civil  Cases. 

(4.)  Questions  as  to  Conscientious  Scruples. 

(5.)  Questions  as  to  Political,  Religious  or  Race  Prejudice — 
Know  Nothings;  Catholics;  Negi'oes;  Chinamen. 

(6.)  Prejudice  against  an  Unlawful  Business. 

246.  Form  of  Question. 

247.  Range  of  Examination. 

(1.)  For  Statutory  Causes  of  Challenge. 
(2.)  Upon  a  Challenge  to  the  Favor. 

248.  Irrelevant  Questions. 

249.  Trial  of  Challenges  for  Implied  Bias  and  Actual  Bias. 

250.  Remedy  for  Disallowance  of  Challenge. 

251.  How  affected  by  Statutes. 

252.  Revisory  Power  of  Appellate  Court  to  be  cautiously  exercised. 

253.  Record  must  show  what. 


246  TRIAL  OF  CHALLENOES.  [CH.  XII. 

§  231.  Mode  of  Challonjfiii};.  —  At  common  law  every 
challeniro  either  to  the  array  or  to  the  polls  was  required  to 
1)0  propounded  in  such  a  way,  that  it  might  be  put  upon 
the  record,  and  that  too,  with  groat  particularity.^  As 
stated  by  Lord  Tenteruen  in  a  leading  case,  so  particular 
were  they  in  the  early  times  that,  on  one  occasion,  it  was 
held,  after  an  examination  of  many  precedents,  to  be  a 
fatal  defect,  that  the  challenge  did  not  conclude  with  an 
*'  et  Jioc  parotus  est  verijicari .'' ''  '^ 

Although  at  the  present  time  the  matter  of  the  challenge 
need  not  be  alleged  with  the  technical  accuracy  of  a  plead- 
ing, there  is  by  no  means  a  total  relaxation  of  the  ancient 
strictness.  The  challenge  must  at  least  be  specific.  "A 
challenge,"  said  Hornblower,  C.  J.,  "whether  in  wanting 
or  by  i^arol,  must  be  in  such  terms  that  the  court  can  see,  in 
the  first  place,  wiiether  it  is  for  principal  cause,  or  to  the 
favor,  and  so  determine  by  what  forum  it  is  to  be  tried ; 
and  secondly,  whether  the  facts,  if  true,  are  sufficient  to 
support  such  challenge.  If  a  party  say,  '  I  challenge  the 
array,'  he  must  assign  the  grounds  of  challenge,  that  the 
court  may  see  by  whom  it  ought  to  be  tried.  The  party 
cannot  determine  the  forum  by  simply  giving  the  challenge 
a  name.  If  he  says,  '  I  challenge  for  principal  cause,'  and 
the  court  proceeds  to  trial,  it  may  turn  out  to  be,  at  most, 

1  Rex  V.  Edmunds,  4  Barn.  &  Aid.  471 ;  Carmarthen  v.  Evans,  10  Mee. 
&  W.  274;  Brown  v.  Esmonde,  Irish  Eep.  4  Eq.  630;  Reg.  v.  Hughes, 
1  C.  &  K.  235;  Pearse  v.  Rogers,  2  Fos.  &  F.  137.  A  challenge  to  the 
array  must  be  in  writing.  People  v.  Doe,  1  Mich.  403;  Ryder  v.  People, 
38  Mich.  269. 

2  Rex  V.  Edmunds,  4  Barn.  &  Aid.  471,  474,  citing  27  II.  VIII,  13.  B., 
pi.  38.  The  following  is  a  precedent  of  a  challenge  to  the  array  taken 
from  Clayton's  Reports,  published  in  1651. :  "  May  it  please  you,  Mr. 
Baron  Thorp,  this  enquest  ought  not  to  take,  for  that  Sir  John  Rams- 
den,  Kt.,  Sheriffe  of  the  County  of  York,  who  did  return  the  pannell  be- 
tween the  said  A.  plaintiffe  and  B.  defendant,  is  cosen  to  the  plaintiffe, 
etc.  and  shew  liow  of  kinne,  etc.,  and  so  where  the  challenge  is  for  lack 
of  hundredors.  or  other  principall  challenge  put  it  down,  etc.  And  this  he 
is  ready  to  averre,  whereof  he  praies  judgement,  and  that  the  said  pannell 
be  quashed."  Then  the  reporter  adds  :  "  This  must  be  put  in  writing, 
but  under  Counsel's  hand.  Where  the  challenge  is  to  the  Poles,  it  is  in 
short  way  b}'  a  verball  challenge."  pp.  153. 154. 


§    231.]  MODE  OF  CHALLENGING.  247 

a  cluillenge  to  the  favor.  If  he  says,  '  I  challenge  to  the 
favor,'  and  the  court  appoints  triors,  it  may  prove  to  be  a 
principal  challenge,  which  the  law  will  not  commit  to 
triors."^ 

Therefore,  a  statement  of  challenge  is  not  sufficiently 
specific,  which  alleges  that  the  juror  "  does  not  stand  indif- 
ferent between  the  parties  ;  "  '^  that  "  he  entertains  and  has 
manifested  a  strong  bias  and  prejudice  against  the  defend- 
ant;"  ^  that  the  juror  "is  a  neighbor  to  the  plaintiff."* 
In  such  cases,  the  challenger  ought  to  go  further  and  state 
why  the  juror  does  not  stand  indifferent.  He  should  state 
some  facts  or  circumstances,  which,  if  true,  will  show 
either  that  the  juror  is  positively  and  legally  disqualified,  or 
which  create  a  probability  or  suspicion  that  he  is  not,  or 
may  not  be,  impartial.^  However,  in  the  State  of  New 
York,  a  practice  grew  up  of  taking  the  challenge  to  the 
favor  in  a  general  form,"  and  finally  the  ruL;  became  settled 
that,  in  taking  this  challenge,  it  was  sufficient  to  state  it  to 
be  "to  the  favor."  ^ 

1  Maun  V.  Glover,  14  N.  J.  L.  195,  203.  See  to  this  effect :  People  v. 
Reynolds,  16  Cal.  128;  Freeman  v.  People,  4  Den.  9;  People  v.  Eenfrow, 
41  Cal.  37;  People  v.  Walsh,  44  Cal.  440;  s.  c,  1  Green  Cr.  L.  487;  State 
V.  Knight,  43  Me.  11;  Powers  v.  Presgroves,  38  Miss.  227;  State  v. 
Squaires,  2  Nev.  226;  Paige  v.  O'Neal,  12  Cal.  483;  Estes  v.  Richard- 
son, 6  Nev.  128;  State  v.  Chapman,  6  Nev.  320;  State  v.  Raymond,  11 
Nev.  98;  People  v.  McGungill,  41  Cal.  429;  People  v.  Hardin,  37  Cal. 
258;  People  v.  Dick,  37  Cal.  277;  People  v.  Buckley,  49  Cal.  241;  Wil- 
son V.  People,  94  111.  299;  Cable  v.  State,  8  Blackf.  531;  Conkey  v. 
Nortliern  Bank,6  Wis.  447;  People  v.  Doe,  1  Mich.  453;  State  v.  Dove. 
10  Ired.  L.  469. 

2  Maun  V.  Glover,  14  K.  J.  L.  195. 

^  Ibid.  In  taking  a  cliallenge  for  tlie  statutory  ground  of  "implied 
bias"  (see  ante,  §  173,  note  4)  the  particular  ground  of  bias  must  be  stated. 
It  is  not  sufficient  to  say,  "I  challenge  the  juror  for  implied  bias." 
People  V.  Reynolds,  16  Cal.  128. 

4  Jones  V.  Butterworth,  3  N.  J.  L.  345. 

5  A  challenge  for  relationsliip  must  state  how  related  and  to  wliom. 
Stevenson  v.  Stiles,  3  N.  J.  L.  543. 

6  See  People  v.  Freeman,  4  Den.  9;  People  v.  Lohinan,  2  Barb.  216; 
-s.  c,  1  K.  Y.  280;  People  v.  Honeyman,  3  Den.  121;  People  v.  Bodine, 
1  Den.  281;  Rogers  v.  Rogers,  14  Wend.  131;  People  v.  Mather,  4  Wend. 
229;  Mechanics*,  etc.  Bank  v.  Smith,  19  Johns.  115. 

'  Carnal  v.  People,  1  Park.  Cr.  R.  272. 


248  TKIAL  OF  CHALLENGES.  [CH.  XII, 

§  232.  Proceedings  upon  Challenges. —  In  early  times 
the  j)roceediiigs  after  the  taking  of  a  chaUcnge  advanced 
with  considerable  formality.  The  practice,  as  stated  by 
Lord  Tenteuden,  was  for  the  adverse  party  either  to  de- 
mur, which  brought  into  consideration  the  legal  validity  of 
the  matter  of  challenge,  or  counterplead,  by  setting  up 
some  new  matter  consistent  with  the  matter  of  challenge,  to 
vacate  and  annul  it  as  a  ground  of  challenge.  Or  he  might 
deny  what  was  alleged  for  matter  of  challenge,  in  which 
event  only  could  triors  be  ai)pointed.^ 

Speaking  of  a  principal  cause  of  challenge.  Strong,  J.,, 
said  :  "  Such  a  challenge  is  in  the  nature  of  a  pleading,  al- 
though not  strictly  a  pleading  as  regulated  by  the  code  ;  it 
must  be  answered  by  a  denial  or  a  demurrer,  and  an  issue 
thus  be  formed  upon  it,  w^iicli  must  be  formally  tried. 
The  issue  makes  a  part  of  the  record,  and  the  proceedings- 
and  decision  may  be  reviewed  on  appeal."  ^ 

§  2So.  The  Tribiuial  for  the  Trial. —  In  a  former  chap- 
ter we  stated  that  principal  challenges  were  tried  by  the 
court,  and  those  to  the  favor  were  decided  by  triors  ;  that 
the  distinction  between  the  challenges,  never  very  accu- 
rately defined,  is  now  fading  away  under  the  operation  of 
the  statutes  conferring  upon  the  court  the  trial  of  both 
kinds  of  challenge.^  Nevertheless,  the  institution  of  triors 
exists  in  some  jurisdictions  ;    therefore  a  brief  allusion  to 


iRex  V.  Edmunds,  4  Barn.  &  Aid.  471,  474;  Alleway  v.  Rowden,  2 
Show.  422;  Rex  v.  Worcester,  Skin.  101;  Rich  v.  Player,  2  Show.  261; 
Carmarthen  v.  Evans,  10  Mee.  &  W.  274. 

2  Clark  V.  Van  Vrancken,  20  Barb.  278.  See  also  People  v.  Stout,  4 
Park.  Or.  R.  71,  109.  Where  the  parties  conceded  the  testinionj^  of  the 
juror  upon  his  voir  dire  to  be  true,  and  called  upon  the  court  to  declare 
the  law  arising  upon  that  testimony,  this  was  held  to  l)e  in  substance  a 
demurrer,  and  the  decision  of  the  court  thereon  a  proper  subject  for 
review.     Ex  parte  Vermilyca,  G  Cow.  555. 

'  Ante,  §  152.  Where  the  court  is  the  trior,  both  of  principal  challenge& 
and  those  to  the  favor,  it  matters  not  upon  what  form  of  challenge 
jurors  are  set  aside,  provided  they  are  incompetent.  A  judgment,  there- 
fore, will  not  be  reversed  because  a  challenge,  good  for  favor,  was  sus- 
tained in  form  for  principal  cause.  Reynolds  v.  United  States,  98  U.  S.. 
145. 


§   234.]  OxVTH  OF  THE  TRIORS.  249 

the  constitution  of  this  tribunal  and  the  rules  under  which 
it  performed  its  functions  becomes  necessary. 

The  usual  practice,  when  triors  were  appointed,  was  for 
the  court,  in  the  first  instance,  no  juror  having  been  sworn, 
to  name  any  two  unexceptionable  persons.^  When  one  juror 
had  been  procured,  he  acted  as  a  trior  wdth  the  two  who 
had  passed  upon  his  qualifications,  or  any  other  two  selected 
by  the  court,  in  deciding,  if  necessary,  upon  the  next  juror 
called.^  When  two  jurors  had  been  procured,  they  acted  as 
the  triors  of  the  remaining  ten.^  There  are  cases,  however, 
in  which  all  the  jurors  sworn,  up  to  the  time  of  the  juror 
being  challenged  for  favor,  have  acted  as  triors  of  the 
challenge.  Thus,  in  one  case  five  acted  as  triors;*  in 
another  eight. ^  This  practice  was  strongly  condemned  by 
Southard,  J.,  who  held  that  such  a  course  would  vitiate  a 
judgment,  on  the  ground  that  those  added  to  the  regular 
number  might  have  influenced  their  decision  and  induced  a 
report,  which  otherwise  would  not  have  been  given.*' 

§  234.  Oath  of  the  Triors. —  The  triors  made  their  find- 
ing under  the  obligation  of  an  oath.  The  following  is  an 
approved  form  in  a  civil  case:  "You  shall  well  and  truly 
try  whether  A.  (the  juryman)  stands  indifferent  between 
the  parties  to  this  issue."  ^  In  a  famous  criminal  trial  the 
following  form  was  used:  "  You  shall  well  and  truly  try 
whether  A.  (the  juryman)  stands  indjfferent  between  the 
people  of  the  State  of  New  York  and  Mary  Bodine,  the 
prisoner  at  the  bar,  and  a  true  verdict  render  according  to 
the  evidence."  ^ 

1  Tw-^o  officers  of  the  court  might  be  appointed.  Rex  v.  Kirwau,  cited 
in  Finlay's  Irish  Dig.,  p.  347. 

2  People  V.  Dewick,  2  Park.  Cr.  R.  230. 

3  Mima  Queen  v.  Hepburn,  2  Cranch  C.  C.  3;  United  States  v.  Wat- 
kins,  3  Cranch,  443;  Boon  v.  State,  1  Ga.  618;  Copenhaven  v.  State,  14 
Ga.  22;  McGuffie  v.  State,  17  Ga.  497;  McCormick  v.  Brookfield,  4  N.J. 
L.  69. 

*  Joice  V.  Alexander,  1  Cranch  C.  C.  528. 

*  Reason  v.  Bridges,  1  Cranch  C.  C.  478. 

6  McCormick  v.  Brookiield,  4  N.  J.  L.  69,  72. 

7  Anon.,  1  Salk.  152. 

»  People  V.  Bodine,  Edm.  Sel.  Cas.  36,  38. 


'2o0  TI'JAL  OF  CHALLENGES.  [CH.   XII. 

§  235.   Triors  to  oxaiuiiie  all  Questions  of  Fact. —  It  is 

l)laiii  that  questions  of  fact  may  arise  upon  a  principal 
challenge.  In  such  cases,  the  practice  seems  to  liavc  been 
uniformly  to  leave  to  the  court  the  determination  of  such 
(juestions  of  fact,  as  well  as  the  law  arising  upon  those 
facts.  This  practice,  however,  was  reprobated  in  one  case, 
where  Strong,  J.,  of  the  Supreme  Court  of  New  York, 
stated  that  he  could  find  no  authority  for  such  a  course, 
either  in  the  old  elementary  writers  or  in  the  early  reports. 
He  considered  the  more  appropriate  course  to  be  to  submit 
to  triors  the  decision  of  such  questions  of  fact.^ 

§  236.  Province  of  Court  upon  Challenge  to  the  Favor. 
—  It  is  the  province  of  the  court,  upon  a  challenge  to  the 
favor,  to  say  what  evidence  is  admissible  for  the  considera- 
tion of  the  triors  ;  but  its  sufficiency  or  insufficiency,  as  estab- 
lishing the  challenge,  is  for  the  triors  alone  to  determine.* 
It  has  been  held  that,  where  the  judge  acts  as  the  trior  of 
a  challenge  to  the  favor,  his  rejection  of  testimony  offered 
in  support  of  the  challenge  is  immaterial,  and  cannot  be  re- 
viewed.^ The  lietter  opinion  would  seem  to  be  to  the  con- 
trary.^ 

§  237.  Triors'  Finding  according  to  their  I>iscretion 
and  Final. —  The  decision  of  the  triors  as  to  the  compe- 
tency of  a  juror  is  according  to  their  "  discretion  and  con- 
science," ^  and  is  conclusive.^  Thei'ofore,  although  it  is 
true  that  upon  a  challenge  for  principal  cause,  certain 
impressions,  hypothetical  opinions,  etc.,  entertained  by  the 
juror  are  not  sufficient  in  law  to  exclude  him,  3'et,  upon  a 
challenge  to  the  favor,  the  triors  may  properly  infer  a  bias 
in  the  mind  of  the  juror  from  such  circumstances,  and  it  is 

1  People  V.  Devvick,  2  Parker  Cr.  11.  230.  See  also  Solander  v.  People, 
2  Colo.  48,  58. 

2  Freeman  v.  People,  4  Denio,  &,  35;  People  v.  Iloneynian.  3  Denio, 
121 ;  Smith  v.  Floyd,  18  Barb.  522. 

3  Costigan  v.  Cuyler,  21  X.  Y.  134. 

*  Sehora  v.  Williams,  6  Jones,  L.  575;  People  v.  Cotta,  49  Cal.  16G. 
5  Co.  Litt.  156.  a. 

«  People  V.  Dewick,  2  Parker  Cr.  R.  230;  State  v.  Benton,  2  Dev.  &  B. 
19G;  State  v.  Ellington,  7  Ired.  L.  61;  State  v.  Dove,  10  Ired.  L.  469;  Er 


§    239.]  COURT  AS  A  SUBSTITUTE  FOR  TRIORS.  251 

error  for  the  court  to  instruct  them  in  terms  showing  their 
effect  as  a  principal  cause  of  challenge.^ 

§  238.  The  Court  as  a  Substitute  for  Triors. —  If 
neither  party  asks  for  triors  to  settle  the  issue  of  fact,  but, 
on  the  contrary,  their  evidence  is  submitted  to  the  judge, 
they  can  not  afterwards  object  to  his  competency  to  decide 
the  issue. ^  In  such  cases  the  determination  of  the  court 
upon  the  question  of  fact  thus  submitted  can  not  be  ex- 
cepted to  and  is  final.  It  stands  in  that  respect  upon  the 
same  footing  as  if  it  had  been  made  l)y  triors,  and  cannot 
be  reviewed  upon  error. ^  In  the  opinion  of  some  courts,  it 
follows  that  w'hen,  by  statute,  the  court  is  substituted  for 
the  triors,  its  finding  is  also  conclusive.* 

§  239.  Disagreement  of  Triors. —  When  triors  disagree, 
the  juror  is  still  liable  to  be  challenged.  Although  a  juror 
is  prima  facie  to  be  regarded  as  competent,  and  although 
in  a  case  of  disagreement  the  party  interposing  the  chal- 
lenge has  not  fully  sustained  it,  it  will  l)e  seen  that  he  has 
not  altogether  failed.  Under  such  circumstances,  it  would 
be  improper  to  accept  or  reject  the  juror.  In  such  a  case, 
there  must  be  another  trial,  and  the  court,  in  the  absence 
of  a  statute  providing  for  such  a  contingency,  may  direct 
the    challenge   to    be    determined   by  some  mode  approxi- 

parte  Vermilyea,  6  Cow.  559;  Freeman  v.  People,  4  Den.  33;  Schoeflfler 
V.  State,  3  Wis.  82S. 

1  Freeman  v.  People,  4  Den.  9,  35;  People  v.  Honeyman,  3  Den.  121 ; 
Smith  V.  Floyd,  IS  Barb.  522.  See  also  People  v.  McMahon,  2  Parker 
Cr.  E.  663;  People  v.  Stout,  4  Park.  Cr.  R.  109;  Ex,  parte  Vermilyea. 
6  Cow.  555.  557. 

-  Ex  parte  Vermilyea,  6  Cow.  555;  People  v.  Mather,  4  Wend.  229. 
240;  People  v.  Eathbun,21  Wend.  509;  O^Brien  v.  People,  36  N.  Y.  276; 
Stout  V.  People,  4  Parker  Cr.  R.  132;  People  .v.  Doe,  1  Mich.  451; 
Wirehach  v.  First  Nat.  Bank,  12  Reporter,  571. 

3  Stout  V.  People,  4  Parker  Cr.  R.  132;  Sanchez  v.  The  People, 
22  X.  Y.  147;  People  v.  Bodine.  1  Denio,  281,  309;  State  v.  Wincroft, 
76  N.  C.  38;  Dew  v.  MeDivitt,  17  Am.  L.  Reg.  623;  s.  c,  31  Ohio  St.  139; 
Morrison  v.  Lovejoy,  0  Minn.  319;  People  v.  Tweed,  11  Hun,  195; 
United  States  v.  McHenry,  6  Blatch.  .503;  Union  Gold  M.  Co.  v.  Rocky 
Mountain  Nat.  Bank,  2  Colo.  565;  Stewart  v.  State,  13  Ark.  720;  Milan 
V.  State,  24  Ark.  346;  Costly  v.  State,  19  Ga.  614. 

*  Post,  §  250. 


252  TRIAL  OF  CHALLENGES.  [CH.  XII. 

mating  to  that  ordinarily  adopted.  'JMuis,  the  tirst  and  sec- 
oiid  jurors  having  failed  to  decide  the  challenge,  the  third 
and  fourth  jurors,  or  two  unexceptionable  l)ystanders,  may 
be  selected  for  this  purpose.^  P>ut  in  the  view  of  other 
courts,  where  the  triors  cannot  agree,  the  challenge  is  not 
made  out,  and  the  juror  must  be  sworn. - 

§  240.  Burden  of  Proof. —  One  called  as  a  juror  is  pre- 
sumed to  be  qualified  and  impartial  until  the  contrary  is 
shown.  The  burden  of  proving  the  challenge  clearly  rests 
upon  the  party  making  it.^  In  the  language  of  a  distin- 
guished judge,  "  he  docs  not  relieve  himself  of  that  burden 
until  he  has  made  out  'a  prima  facie  case,  or,  in  criminal 
cases,  such  a  case,  at  the  least,  as  leaves  the  juror's  impar- 
tiality in  reasonable  doubt.  It  is  not  sufficient  for  him  to 
l)rove  facts,  from  which  vague  inferences  of  bias  or  favor 
can  be  drawn,  and  then  demand  that  his  adversary  shall  be 
concluded,  unless  he  rebuts  those  inferences  by  counter- 
vailing testimony."  •* 

§  241.  Exainiiiation  of  the  Juror  upon  the  Voir  Dire. — 
It  is  a  general  rule  that  the  juror  challenged  may  be  sworn 
as  a  witness  to  state  or  explain  any  facts  which  do  not  im- 
peach his  character  or  motives.^  The  rule  was  laid  do.ui 
in  an  early  Ohio  case,  that  the  party  challenging  a  juror, 
"on  suspicion  of  bias  or  partiality,"  might  examine  the 
juror  or  call  witnesses,  but  he  could  not  do  both.''      This 

1  People  v.Dewick,  2  Piirker  Cr.  R.  230.  See  also  People  v.  Bodine 
Edm.  Sel.  Cas.  38,  39. 

2  United  States  v.  Watkins,  3  Cranch  C.  C.  443,579;  Com.  v.  Fitz- 
patrick,  3  Clark  (Penn.),  520. 

3  Reynolds  v.  United  States,  98  U.  S.  145, 157;  Holt  v.  People,  13  Mich. 
224. 

*  Holtv.  People,  13  Mich.  224.  228,  per  Cooley,  J. 

8 1  Chitty  Cr.  L.  550;  O^den  v.  Parks,  IG  Johns.  180;  Fenwick  v.  Parker, 
3  Code  Rep.  254;  People  v.  Fuller,  2  Parker  Cr.  R.  IG.  In  one  case  the 
court  refused  to  allow  a  challenged  juror  to  be  sworn  upon  the  voir  dire, 
for  the  purpose  of  allowing  him  to  state  to  the  triors  what  was  the  fact 
as  to  a  declaration  of  bias  alleged  to  have  been  made  by  him.  Joice  v. 
Alexander,  1  Cranch  C.  C.  528.  But  this  decision  was  hastily  made  at 
nisi  priua,  and  is  probably  incorrect. 

6  State  V.  Ankrim,  Tappan,  80. 


§    241.]  EXAMINATION  UPON  THE  VOIR  DIRE.  253 

practice  seems  never  to  have  become  general,  and  the  con- 
trary is  now  quite  uniformly  declared  by  statute.  The 
juror's  incompetency  may  be  proved,  both  by  his  own  ex- 
amination upon  the  voir'  cUi^e,  and  by  testimony  of  wit- 
nesses. 

In  Connecticut,  it  has  never  l>een  the  practice  to  examine 
the  juror  upon  oath  as  to  grounds  of  challenge.  Jurors  arc 
nevertheless  questioned,  and  their  statements  taken,  without 
the  sanction  of  an  oath,  to  determine  their  competency.  No 
good  reason  would  seem  to  exist  why  a  juror  should  not  be 
sworn  upon  the  voir  dire,  and  examined  within  reasonable 
limits  as  to  his  competency.  The  absurdity  of  subjecting  a 
person  to  an  examination  where  his  answers  can  not  be 
compelled,  and,  when  voluntarily  given,  maybe  falsely  made 
with  impunity  in  a  matter  of  the  gravest  concern,  is  becom- 
ing apparent  to  the  courts  of  that  State.  Therefore,  within 
a  very  recent  period,  on  motion  of  the  accused,  in  a  few 
capital  trials,  it  has  been  permitted  to  examine  the  juror 
under  oath.  This  practice  will  probably  soon  become  gen- 
eral. In  a  late  case,  the  Supreme  Court  of  that  State  say  : 
"  We  think  the  matter  may  safely  be  left  to  the  discretion 
of  the  court.  It  would  doubtless  be  granted  upon  request 
in  all  cases  of  very  grave  importance."  ^ 

The  juror,  upon  this  examination,  like  any  other  witness 
in  a  judicial  investigation,  makes  his  answers  subject  to  an 
indictment  for  perjury.'^  He  is  not  concluded  by  his  testi- 
mony as  once  given.  Having  discovered  an  error,  the  court 
may  permit  a  correction  upon  a  re-examination.^  After  a 
challenge  has  been  made  to  a  juror,  there  can  be  no  reason 
for  examining  him  on  the  voir  dire,  if  he  admits  all  that 
is  alleged  in  the  challenge.*  So,  whenever  a  good  cause  of 
challenge  is  interposed  by  one  party  and  admitted  by  the 
other,  there  is  nothing  to  try,  and  the  juror  must  stand 
aside. ^      The  court    may  conduct  the  examination  of    the 

1  State  V.  Hoyt,  47  Conn.  518. 

2  State  V.  Howard,  63  Ind.  502. 

^  Hendrick  v.  Com.,  5  Leigh,  708. 

*  Morrison  v.  Lovejoy,  6  Minn.  319. 

^  State  V.  Lautenschlager,  22  Minn.  514. 


254  TRIAL  OF  CHALLENGES.  [CH.  XII. 

juror  upon  the  voir  dire  for  its  own  information.^  An  ex- 
ception taken  to  the  refusal  of  the  court  to  permit  a  certain 
question  to  be  put  to  a  juror  upon  the  voir  dire,  may  be 
waived  by  counsel  omitting  again  to  insist  upon  the  excep- 
tion when  the  court  propounds  a  substitute. - 

§  242.  A  Challenge  precedes  £xaiiiiiiation. — A  party 
has  no  right  to  examine  the  juror  by  way  of  iishing  for 
some  ground  of  exception.^  A  challenge  must  be  first 
made,  some  specific  ground  assigned,  and  that  cause  denied 
on  the  other  side,  before  evidence  can  be  heard  ;  for,  until 
that  is  done,  there  is  no  issue  for  the  decision  of  the  triors  or 
the  court.*  But  this  rule  was  denied  and  strongly  condemned 
in  an  early  California  case.  The  court  stated  that  it  was 
usual  everywhere  to  ask  the  juror  whether  he  has  formed  or 
expressed  an  opinion  as  to  the  guilt  or  innocence  of  the  ac- 
cused ;  that  before  being  compelled  to  challenge,  the  latter 
should  be  allowed  to  ascertain  whether  there  was  any  fact 
from  which  the  presumption  of  bias  or  prejudice  could 
arise,  and  to  do  this  it  was  right  to  permit  the  foregoing 
questions  to  be  asked,  which  fact  having  been  ascertained, 
the  challenge  would  properly  follow\  ^ 

1  State  V.  Ludwig,  70  Mo.  412.  But  where  the  judge  takes  up  the  ex- 
amination of  a  juror  after  it  has  been  concluded  by  one  party,  he  cannot 
deprive  such  party  of  the  privilege  of  re-examination  of  such  juror,  on 
the  theory  that  the  challenge  has  been  submitted  to  the  court  for  de- 
cision, although  the  other  party  refrain  from  putting  any  questions 
whatever.     Stephens  v.  The  People,  38  Mich.  739. 

2  LoetHer  v.  Keokuk  Packet  Co..  7  Mo.  App.  185. 

3  Reg.  V.  Dowling,  3  Cox  C.  C.509;  Bales  v.  State,  63  Ala.  30,  38. 

*  1  Chitty  C.  L.  546;  State  v.  ('reasman,  10  Ired.  L.  395,  per  Ruffin,  C. 
J.;  United  States  v.  Johnson,  1  Cranch  C.  C.  371;  Matilda  v.  Mason,  2 
Cranch  C.  C.  343;  Lord  v.  Brown,  5  Den.  345;  Trullinger  v.  Webb,  3 
Ind.  198;  Powers  v.  Presgroves,  38  Miss.  227;  Reg.  v.  Stewart,  1  Cox  C. 
C.  174;  Com.  v.  Thrasher,  11  Gray,  55;  State  v.  Flower,  Walker  (Miss.) 
319;  King  v.  State,  5  How.  (Miss)  730;  State  v.  Zellers,  7  N.  J.  L.  220; 
and  note  by  the  reporter,  Ibid.  223.  In  some  States  a  motion  or  re- 
quest of  a  party  that  the  juror  be  put  to  answer  is  understood  to  be  in 
itself  a  challenge.  Howell  v.  Howell,  59  Ga.  145;  Temple  v.  Sumner, 
Smith  (N.  H.)  226,  232. 

5  People  V.  Backus.  5  Cal.  275,  277. 


§    243.]        PROVINCE  OF  COURT  UPON  EXAMINATION.  255 

Whatever  may  be  said  for  or  against  the  rule,  there  can 
be  no  doubt  that  the  trial  judge  may,  in  his  discretion,  per- 
sonally examine  a  juror  otherwise  than  upon  oath,  and  if 
he  finds  reasonable  grounds  for  challenge,  he  may  excuse 
the  juror,  although  no  challenge  has  been  made.^  Or  he 
may,  in  his  discretion,  allow  either  party  to  interrogate  a 
juror  without  first  interposing  a  challenge  ;  and  this,  so 
far  as  we  know,  is  the  general  practice  of  the  courts. - 
The  parties  may  also  consent  that  the  examination  of  the 
juror  in  support  of  the  challenge  shall  not  be  under 
oath.  And  if  a  party  stands  by  and  permits  an  examina- 
tion to  be  so  conducted,  his  consent  will  be  implied.^ 

§  243.  Province  of  Court  upon  Examination.  —  The 
right  of  examination  of  the  juror  is  not  to  be  exercised 
without  restraint,  either  as  to  time  or  mode.  The  court 
must  be  vested  with  considerable  discretion  in  determining 
the  character  of  the  questions  to  be  proposed  and  the  limits 
of  the  examination.  The  questions  must  be  pertinent,  and 
from  their  nature  calculated  to  show  that  the  person  of- 
fered is  not  suflicicntly  free  from  bias  to  sit  as  an  impartial 
juror.*  But,  within  reasonable  limits,  each  party  has  a 
right  to  put  pertinent  questions  to  show,  not  only  that  thei-e 
exist  proper  grounds  for  a  challenge  for  cause,  but  to  elicit 
facts  to  enable  him  to  decide  whether  or  not  he  will  make  a 
peremptory  challenge.^ 

The  duties  of  the  trial  judge  upon  the  examination  of 
jurors  are  so  well  set  out  by  Winkler,  J.,  of  the  Texas 
Court  of  Appeals,  in  a  late  case,^  that  we  deem  it  proper  to 
present  his  remarks  at  length  :  "  We  think,"  said  he,  "  it 
may  be    safely  said  that  the  judge  should  either   himself 

1  United  States  v.  Cornell,  2  Mason,  91. 

'  State  V.  Lautenschlager,  22  Minn.  514;  Carnal  v.  People,  1  Park  Cr. 
R.  272, 282. 

3  Lord  V.  Brown,  5  Den.  345,  348;  Carnal  v.  People,  1  Park.  Cr.  R.  272, 
282;  TruUiuger  v.  Webb,  3  Ind.  198.  But  see  State  v.  Flower,  Walker 
(Miss.)  318;  King  v.  State,  5  How.  (Miss.)  730. 

*  State  V.  Coleman,  8  So.  Car.  237;   Reg.  v.  Lacey,  3  Cox  C.  C.  517. 

«  Watson  V.  Whitney,  23  Cal.  375;  State  v.  (iodfrey,  Brayt.  (Vt.)  170. 

«  Stagner  v.  State,  9  Tex.  App.  440. 


250  THIAL  OF  CHALLENGES.  [CIl.  XII. 

conduct  the  cxtiiiHiialioii,  or  at  least  so  far  conduct  it  as  to 
continc  it  to  the  point  under  investigation,  and  not  permit  it 
to  take  so  wide  a  range  as  to  entrap  tlie  unwary  juror  into 
letting  fall  sonic  expression  not  seriously  and  understand- 
iugly  made,  and  from  which  it  may  afterwards  be  argued 
that  he  was  not  an  imi)artial  juror  in  the  case.  The  juror 
should  be  treated  with  the  utmost  fairness  in  the  examina- 
tion, and  not  be  subjected  to  the  rigid  cross-questioning 
sometimes  indulged  in  in  cross-examining  a  witness  who  is 
testifying  in  a  case.  The  attitude  of  the  juror  and  that  of  a 
witness  are  entirely  dissimilar,  and  they  should  be  treated  en- 
tirely differently.  Whilst  it  may  become  necessary  to  deal 
with  seeming  harshness  wnth  a  refractory  witness,  it  can 
never  be  necessary  to  so  deal  with  a  juror,  who  is  called 
upon  to  decide  impartially  betw^een  the  State  and  the  de- 
fendant in  matters  involving  the  liberty,  it  may  be  the  life, 
of  a  citizen,  unless,  indeed,  he  should  manifest  an  unwil- 
lingness to  disclose  what  his  real  feelings  or  opinions  arc  ; 
and  this  the  judge  should  guard  with  great  particularity. 
One  who  is  too  refractory  or  silly  to  answer  a  respectful 
question  in  a  respectful  manner  is  generally  unfit  for  the 
performance  of  this  important  part  of  the  administration 
of  the  law."  ^ 

§  244.  Jurors  to  be  exainiiied  singly. —  This  was  the 
practice  at  common  law%  and  certainly  ought  to  prevail 
under  the  statutes,  unless  something  therein  authorizes  the 
contrary  practice."^  As  stated  by  the  Supreme  Court  of 
Georgia  in  a  late  case,^  "Jurors  are  to  be  driven  upon  the 
prisoner  in  single  file,  and  not  in  platoons.  He  is  not  to  be 
confused  by  looking  upon  a  multitude  of  faces  at  once,  but 
is  allowed  to  scan  each  countenance  separately.  He  is  not 
to  be  thrown  into  alarm  by  too  strong  an  exhibition  of 
force.  He  takes  his  jurors  one  by  one  and  wrestles  Avith 
them  single  handed."  * 

i/WcZ.  p.  451. 

2 1  Chit.  Cr.  L.  547 ;  Arch.  Cr.  PI.  &  Pr.  162. 
8  Williams  v.  State,  60  Ga.  367. 

*  Ibid.,  p.  372.     See  also  Driskell  v.  Parish  (U.  S.  Cir.  Ct.  Dist.  Oliio, 
1847),  10  Law  Reporter,  395. 


§   245.]    QUESTIONS  TENDING  TO  DEGRADE  THE  JUROR.  257 

§  245.  Questions  tending  to  degrade  the  Juror. —  (1.) 
The  General  Hide. —  A  juror  cannot  be  asked  any  questions 
tending  to  his  disgrace,  for  the  purpose  of  showing  him  to 
be  an  unfit  person  to  sit  as  a  juror.  As  stated  by  the  court 
in  an  old  case,  "You  shall  not  ask  a  witness  or  juryman 
whether  he  hath  been  whipped  for  larceny,  or  convict  of 
felony  ;  or  whether  he  was  ever  committed  to  Bridewell 
for  a  pilferer,  or  to  Newgate  for  clipping  and  coining ; 
or  whether  he  is  a  villain  or  outlawed,  because  that  would 
make  a  man  discover  that  of  himself  which  tends  to  shame, 
crime,  infamy  or  misdemean(n'."  ^ 

(2.)  Questions  as  to  Expression  of  Opinion  that  the  Ac- 
cused is  Guilty. —  Upon  the  same  principle,  it  was  earl}^ 
held  that,  because  it  showed  gross  misbehavior,  a  juror 
could  not  be  asked  whether  he  had  expressed  a  belief  that 
the  accused  was  guilty,  would  be  hanged,  or  the  like.  Thus, 
upon  the  trial  of  Peter  Cook  for  treason,  during  the  reign 
of  William  III.,  the  prisoner  put  the  question  to  one  of  the 
jurors :     "  Sir,  have  you  ever  said  any  such  thing,  that  you 

'  Anon.,  1  Salk.  153.  See  also  Farmers'  Bank  v.  Smith,  19  Johns.  115; 
Hudson  v.  State,  1  Blackf.  317.  It  has  been  held  that  a  juror  cannot  be 
asked  whether  he  has  subscribed  money  towards  carrying  on  the  prose- 
cution in  a  criminal  case.  Reg.  v.  Fitzpatrick,  Craw.  &  Dix  (Irish), 
513.  If  the  juror  chooses  to  answer  questions  tending  to  his  disgrace,  it 
is  only  a  waiver  of  his  privilege  of  refusal,  and  gives  the  prisoner  no 
cause  to  complain.  Sprouce  v.  Com.,  2  Va.  Cas.  375.  For  the  purpose 
of  showing  a  juror  to  be  disqualified  under  §  820  (since  repealed,  ante^ 
§  49)  of  the  Revised  Statutes  of  the  United  States,  he  could  not  be  asked 
whether  or  not  he  had  aided  or  abetted  the  late  rebellion  against  the 
United  States.  Upon  this  point  Mr.  Justice  Miller  said  in  a  recent  case  : 
'•The  question  asked  him,  if  answered  in  the  affirmative,  would  have 
admitted  his  guilt  of  the  crime  of  treason.  Whether  pardoned  by 
a  general  amnesty,  or  not  pardoned,  we  think  the  crime  was  one 
which  he  could  not  be  required  to  disclose  in  this  manner."  Burt 
V.  Panjaud,  99  U.  S.  180.  See  in  this  connection  United  States  v, 
Reynolds,  1  Utah,  31*^  The  juror  might  refuse  to  take  the  test  oatii 
prescribed  by  §  821  of  ibe  "Hevised  Statutes,  designed  to  purge  the  panel  of 
such  jurors  as  voluntarily  engaged  in  the  late  rebellion.  Atwood  v. 
Weems,  99  U.  S.  183.  It  could  not  be  tendered  to  the  panel  at  the  in- 
stance of  one  of  the  parties  to  a  civil  suit.  If  tendered  at  all,  it  was  by 
the  district  attorney,  or  his  representative.  Ibid.  See  also  upon  this 
point,  United  States  v.  Blodgett,  35  Ga.  336. 

(17) 


258  TRIAL  OF  CHALLENGES.  [CII.   XII. 

believe  me  i^uilty?"  The  court  refused  to  allow  the  ques- 
tion to  be  put,  the  Lord  Chief  Justice  observing:  "  I  take 
it  to  be  at  least  a  scandalous  misbehaviour,  and  deservedly  ill 
spoken  of,  for  any  man  to  prejudge,  especially  in  such  a 
heinous  matter.  I  think  it  is  a  very  shameful  discovery  of 
a  man's  weakness  and  rashness,  if  not  malice,  to  judge 
before  he  hears  the  cause,  and  before  the  party  that  is  ac- 
cused could  be  tried.  But  it  seems,  by  what  the  prisoner 
s:iys,  that  he  would  ask  all  the  jurors,  whether  they  have 
not  said  that  he  wns  guilt}^  or  that  they  would  find  him 
guilty,  or  that  he  should  be  hanged,  or  the  like  ;  which 
(presuming  him  innocent)  is  to  ask,  whether  they  have 
not  defamed  and  slandered  him  in  the  highest  degree  ;  and 
to  force  them  to  discover  that  they  have  a  mortal  hatred  to 
liim,  and  come  with  a  malicious  resolution  to  convict  him  ; 
which,  admitting  they  are  not  punishable  by  our  law,  yet 
are  things  so  detestably  wicked  and  so  scandalous,  as  are  not 
tit  to  be  required  to  be  disclosed  by  and  against  them- 
selves." ^ 

Lord  Tenterden  cited  this  decision  with  approval  in  the 
leading  case  of  Rex  v.  Edmunds  ;  •^  but,  in  this  connection, 
he  shows  why  an  expression  of  opinion  as  to  the  guilt  of  an 
accused  person  was  held  in  such  detestation  at  common  law. 
"  The  ancient  authorities  show,"  said  he,  "  that  expressions 
used  by  a  juryman  are  not  a  cause  of  challenge,  unless  they 
are  to  be  referred  to  something  of  personal  ill-will  towards 
the  party  challenging."  ^  And  then  he  added  :  "  To  be  sure, 
it  is  a  very  dishonorable  thing  for  a  man  to  express  ill-will 
towards  a  person  accused  of  a  crime,  in  regard  to  the  mat- 
ter of  his  accusation."  The  law,  as  declared  in  these  cases, 
is  reiterated  in  two  Irish  nisi  prius  cases,^  and  in  a  few 
cases  in  this  country.* 

'ISHow.  St.  Tr.  334. 

1=4  Barn.  &  Aid.,  471,  492. 

3  See  also  2  Hawk.  P.  C,  ch.  43,  §  28. 

*  Rex  V.  Kirwan,  cited  in  Finlaj^'s  Irish  Dig.,  p.  347;  Reg.  v.  Hughes, 
2  Craw.  &  Dix.  Irish  Cir.,  396. 

estate  v.  Baldwin,  1  Const.  Rep.  (S.  C.)  289,  293;  State  v.  Sims, 
2  Bailey  (S.  C),  29;  State  v.  Spencer,  21  N.  J.  L.  197;  State  v.  Fox, 
2.5  N.  J.  L    566. 


§    245.]   QUESTIONS  TENDING  TO  DEGRADE  THE  JUROR.  259 

But  this  rule  properly  has  no  application  to  this  country  ; 
because  with  us  it  is  the  law  that  not  only  expressions  of 
opinion  showing  ill-will,  but  any  and  all  expressions  of  decided 
opinion,  made  without  any  motive  whatever,  are  causes  of 
challenge.^  To  express  a  candid  judgment,  after  hearing  a 
revelation  of  the  facts  in  a  civil  or  criminal  case,  is  neither 
"dishonorable,"  "disgraceful,"  nor  in  the  least  degree 
"disreputable,"  although  some  judges  have  so  stated  the 
fact.^  From  what  we  have  seen,  it  is  apparent  that  this  was 
not  what  the  common  law  coademned  ;  therefore,  an  expres- 
sion of  belief,  without  the  ingredient  of  personal  ill-will, 
deserves  no  reprobation  whatever,  never  disgraces  a  juror, 
and  hence  he  may  be  interrogated  upon  this  point. '^ 

This  view  of  the  law  early  prevailed  in  well  considered 
cases.  Thus,  in  the  second  trial  of  Fries  for  treason  against 
the  United  States,  Mr.  Justice  Chase  permitted  the  ques- 
tion to  be  asked  :  ' '  Have  you  ever  formed  or  delivered  an 
opinion  as  to  the  guilt  or  innocence  of  the  prisoner,  or  that 
he  ought  to  be  punished?"  No  opposition  seems  to  have 
been  made  to  the  question.*  There  was  no  suggestion  that 
the  character  of  the  question  was  such  that  an  affirmative 
answer  would  disgrace  the  juror.  Nor  do  we  find  any  sim- 
ilar suggestion  in  the  subsequent  trial  of  Callender,  indicted 
for  the  publication  of  a  seditious  libel,  where  the  same 
learned  judge  permitted  the  question  to  be  put:  "Have 
you  ever  formed  and  delivered  an  opinion  upon  the  charges 
contained  in  the  indictment  ?  "  ^  And  since  the  trial  of 
Aaron  Burr,  where  Chief  Justice  Marshall  allowed  this 
question  to  be  put  repeatedly,  the  right  to  examine  a  juror 
upon  this  point  seems  to  have  been  seldom  doubted,  and  is 
now  the  settled  practice.  In  England,  even,  we  find  in  one 
modern  case  the  juror  questioned  by  the  counsel  for  the  de- 
fendant, without  opposition,  as  to  whether  he  had  ever  ex- 
pressed an  opinion  upon  the  guilt  of  the  accused.® 

1  Ante^  §  211  et  seq. 

2Colcock,  C.  J.,  in  State  v.  Baldwin,  1  Const.  Rep.  (S.  C)  289,  293. 

'  People  V.  Vermilyea,  7  Cow.  108,  125. 

*  Whart.  St.  Tr.  610,  614. 

«  Whart.  St.  Tr.  688,  696. 

6  See  Reg.  v.  Lacey,  3  Cox  C.  C.  517. 


260  TRIAL  OF  CHALLENGES.  [CH.  XII. 

(3.)  Qiies(io7is  as  to  ExpreHsiouH  of  Opinion  on  the 
Merits  in  Civil  Cases. —  The  common  hiw  pcniiitted  lim- 
ited inquiries  of  persons  as  to  expressions  of  opinion  in  civil 
cases  ;  for,  according  to  that  law,  the  juror  might  have  ex- 
pressed a  disqualifying  opinion  upon  a  i)erfectly  proper  oc- 
casion, for  example,  as  an  arbitrator  between  the  parties.^ 
And  this  was  the  reason  assigned  by  ISavage,  C.  J.,  on  one 
occasion,  implying  that  a  candid  expression  of  private 
opinion  was  not  i)ropcr  under  all  circumstances,  although 
disqualifying  the  person  for  subsequent  service  as  a  juror 
in  the  case.-  However,  the  practice  is  now  thoroughly 
settled  in  civil  suits,  to  ask  the  jurors  upon  their  oath 
whether  they  have  not  formed  or  expressed  any  opinion  in 
the  case.^ 

(4.)  Questions  as  to  Conscientious  /Scruples. — In  a  pe- 
tition for  freedom,  the  court  refused  to  allow  a  juror  to  be 
examined  on  oath  as  to  his  religious  opinions,  —  whether  he 
were  a  Methodist,  and  whether  the  Methodists  had  re- 
ligious scruples  affecting  their  opinions  as  to  the  legality  of 
slavery.^  The  grounds  of  this  decision  were  not  stated, 
nor  are  they  clear.  The  reasoning  employed  by  the  court 
in  another  case,  and  upon  another  subject  of  challenge, 
would  seem  to  be  equally  applicable  to  both.  The  juror  was 
asked  whether  he  could,  in  his  conscience,  find  any  man 
guilty  of  an  offense  which  would  subject  him  to  the 
punishment  of  death.  "The  question  asked  the  juror  in 
this  case,"  said  Stevens,  J.,  "  has  nothing  to  do  Avith  the 
guilt  or  innocence  of  the  prisoner,  nor  is  it  respecting  any 
improper  act  or  conduct  of  the  juror,  nor  could  it  tend  to 
either  his  disgrace  or  dishonor.     It  was  a  general  question 


1  Anon.,  1  Salk.  WA. 

*  Pringlev.  Huse,  1  Cow.  432. 

Spear  v.  Spencer,  1  G.  Greene,  535.  See  also  Dew  v.  McDivitt,  31 
Ohio  St.  139;  s.  c,  17  Am.  L.  Reg.  621;  Williams  y.  Godfrey,  1  Heisk. 
299. 

*  Reason  V.  Bridges,  1  Cranch  C.  C.  477. 


§   245.]   QUESTIONS  TENDING  TO  DEGRADE  THE  JUROR.  261 

upon    an  abstract  principle,  and    therefore,  under  the  cir- 
cumstances of  the  case,  might  be  properly  asked."  ^ 

(5.)  Questions  as  to  Political,  Religious  or  Race  Preju- 
dice — Know-Nothings  — Catholics  —  Negroes  —  Chinamen. 
—  In  a  case  in  which  certain  foreigners  were  indicted  for  an 
assault  with  intent  to  kill,  a  juror,  suspected  of  being  a  mem- 
ber of  the  Know-Nothing  organization,  was  asked,  "  Have 
you,  at  any  time,  taken  an  oath,  or  other  obligation  of  such 
a  character  that  it  has  caused  a  prejudice  in  your  mind 
against  foreigners?"  This,  and  other  questions  of  similar 
import,  were  not  allowed  to  be  put,  but  erroneously,  as  it  was 
held  on  appeal.  The  only  point  discussed,  however,  was 
as  to  the  pertinency  of  the  question  as  showing  the  unfit- 
ness of  the  juror.  Upon  this  point  the  court  very  properly 
held,  that  one  who  had  taken  oaths,  or  was  under  obliga- 
tions which  influenced  his  mind  and  feelings  in  such  a 
manner  as  to  deny  to  a  foreigner  an  impartial  trial,  was 
grossly  unfit  to  sit  as  a  juror,  and  such  facts  should  be 
known. ^  But  upon  the  trial  of  certain  persons  for  engaging 
in  a  riot  between  Roman  Catholics  and  native  Americans,  it 
was  held  that  a  juror  could  not  refuse  to  answer  the  fol- 
lowing questions,  on  the  ground  that  it  would  disgrace  him  : 
"  Have  you  any  bias  or  prejudice  against  Roman  Catho 
lies?"  "Do  you  belong  to  the  Order  of  United  Ameri 
cans  ?  "  ^ 

On  the  other  hand,  it  was  held  by  a  court  of  the  highest 
authority,  that,  upon  the  trial  of  certain  persons  for  par 
ticipating  in  the  destruction  of  a  convent  by  mob  violence 
(many  of  the  witnesses  being  Roman  Catholics),  a  juror 
could  not  be  asked  whether  he  entertained  the  opinion 
that  a  Roman  Catholic  was  not  to  be  believed  upon  oath  ; 

1  Jones  V.  State,  2  Blackf.  -475,478.  See  also  Driskell  v.  Parish,  10  Law 
Reporter,  395. 

2  People  V.  Reyes,  5  Cal.  347.  In  one  case  it  was  lield  not  improper 
to  allow  the  prosecuting  officer  to  inquire  of  one  presented  as  a  juror  in 
a  case  of  counterfeiting,  whether  lie  had  taken  an  oath  to  acquit  all  per- 
sons of  counterfeiting;  but  that  the  juror  might  properly  decline  to  an- 
swer.    Fletcher  v.  State,  6  Humph.  249. 

3  People  V.  Christie,  2  Abb.  Pr.  256;  s.  c.  2  Park.  Cr.  R.  579. 


262  TRIAL  OF  CHALLENGES.  [CH.   XII. 

nor,  whether  the  destruction  of  the  building,  under  the  cir- 
cumstances, constituted  a  crime  ;  nor,  whether  such  an  of- 
fense ought  to  be  punished  by  hiw,  or  in  the  measure  pre- 
scribed by  hiw  for  other  offenses  of  the  same  kind.^ 

Upon  the  trial  of  a  white  man  for  the  murder  of  a 
negro,  the  trial  judge,  against  the  objection  of  the  ac- 
cused, allowed  the  State's  attorney  to  ask  the  jurors 
"if  they  could,  upon  the  same  evidence,  return  the  same 
verdict  against  a  white  man  for  killing  a  negro  as  for 
killing  another  white  man."  This  was  held  to  be  a  proper 
({uestion  for  the  purpose  of  enabling  the  court  to  sat- 
isfy itself  that  the  jurors  were  free  from  disqualifying 
bias  or  prejudice.^  In  California,  upon  the  trial  of  a  Chi- 
naman for  a  criminal  offense,  the  following  questions  may 
be  asked  of  a  juror:  "Other  things  being  equal,  would 
you  take  the  word  of  a  Chinaman  as  soon  as  3^ou  would 
that  of  a  white  man?"  "If  the  defendant,  a  Chinaman, 
should  be  sworn  as  a  witness  in  his  own  behalf,  w'ould  you 
give  his  testimony  the  same  credit  that  you  would  give  to 
the  story  told  by  a  white  person  under  the  same  circum- 
stances?" ^ 

1  Com.  V.  Buzzell,  IG  Pick.  153. 

*  Lester  v.  State,  2  Tex.  App.  432.  It  was  argued  by  the  counsel  in 
iiis  brief  before  the  appellate  court  that  "  appellant  is  a  white  man  and 
a  democrat;  the  deceased  was  a  negro,  and,  of  course,  a  republican.  On 
account  of  the  test  to  the  jury,  no  juror  was  permitted  to  try  the  case 
until  he  had,  in  effect,  taken  an  oath  that  he  regarded  a  negro  as  highly 
as  he  did  a  white  man.  By  this  means,  jurors  of  the  political  belief  of 
appellant  were  excluded,  although  thoroughly  and  legally  competent  to 
try  the  case;  and  appellant  was  tried  by  his  political  enemies,  with  the 
question  of  race  fairly  raised  and  at  issue."  This  argument  was  thoroughly 
answered  by  White,  J.  ''  We  cannot,"  said  he,  "  express  too  forcibly  our 
condemnation  of  such  arguments  and  appeals  to  political  passions  and 
I)rejudices.  The  very  fact  that  they  are  made  i>roves  the  necessity  of 
guarding  against  them  in  the  execution  of  the  law.  *  *  *  u  there 
be,  as  the  argument  indicates,  in  the  country,  men  who  feel  and  believe, 
morally,  sociall}',  politically,  or  religiously,  that  it  is  not  murder  for  a 
white  man  to  take  the  life  of  a  negro  with  malice  aforethought,  then  wo 
unhesitatingly  say  such  men  are  not  fit  jurors,  in  contemplation  of  law, 
to  try  a  white  man  for  such  a  crime."  Ibid.,  p.  442.  See  also  State  v. 
McAfee,  64  X.  C.  339. 

3  People  V.  Gar  Soy  (Sup.  Ct.  Cal.,  Dec.  1880),  23  Alb.  L.  J.  418.  See 
in  this  connection,  ante,  §  19G. 


§    246.]  FORM  OF  QUESTION.  268 

(6.)  Questions  as  to  Prejudice  against  an  Unlawful 
Business. —  Upon  the  trial  of  one  charged  with  being  en- 
gaged in  an  illegal  calling,  a  juror  cannot  be  asked  upon 
the  voir  dire,  whether  he  would  give  less  credit  to  the  testi- 
mony of  one  proved  to  be  engaged  in  such  calling,  than  to 
that  of  other  persons.  "  The  occupation  of  a  person," 
said  Benedict,  J,,  "  may  always  be  shown  as  bearing  upon 
his  credibility.  A  person  is  not  shown  to  be  incompetent 
to  sit  as  a  juror  upon  the  trial  of  a  thief  by  showing  that 
he  would  sive  less  credit  to  a  thief  than  to  one  engaged  in 
an  honest  calling."  ^ 

§  246.  Form  of  Question. —  The  court  should  regulate 
the  form  of  the  questions.  Those  framed  hypothetically 
should  be  rejected."^  Nor  should  they  be  unnecessarily  pro- 
lix. Thus,  upon  a  trial  for  murder,  the  question  "have 
you  formed  and  expressed  the  opinion  that  the  prisoner  is 
guilty,"  refers  to  every  grade  of  unlawful  homicide,^  and 
obviates  the  necessity  of  specially  interrogating  the  juror 
as  to  whether  he  has  formed  or  expressed  the  opinion  that 
the  prisoner  is  "  guilty  of  either  murder  or  manslaughter."  * 
And  as  stated  by  Chief  Justice  Marshall  upon  one  occasion,* 
the  question  put  in  the  case  of  Callender,  who  was  indicted 
for  the  publication  of  a  seditious  libel :  "^  ''  Have  you  made 
up  and  delivered  the  opinion  that  the  prisoner  is  guilty  or 
innocent  of  the  charo-e  laid  in  the  indictment?"  means  in 


1  United  Stotes  v.  Ddff  (U.  S.  Cir.  Ct.,  S.  D.  New  York,  January. 
1881),  6  Fed.  Eep.  -15,  48.     See  in  this  connection,  ante,  §§  193,  195. 

2  State  V.  Arnold,  12  Iowa,  479;  State  v.  Davis,  14  Nev.  439;  State  v. 
Leicht,  17  Iowa,  28;  State  v.  Ward,  14  La.  An.  673;  State  v.  Bennett, 
14  La.  An.  651;  State  v.  Bell,  15  La.  An.  114.  But  see  Chicago,  etc.  R. 
Co.  V.  Adler,  56  111.  344;  Chicago,  etc.  R.  Co.  v.  Buttolf,  66  111.  347; 
Galena,  etc.  R.  Co.  v.  Haslam,  73  111.  494;  Richmond  v.  Roberts,  98  111. 
472.  In  these  cases  it  was  held  that  the  representative  of  the  railroad 
company  had  a  right  to  ask  jurors  this  question :  "If,  upon  hearing  the 
testimony,  they  should  fliid  it  evenly  balanced,  which  way  they  would  be 
inclined  to  decide  the  case?" 

3  State  V.  Benton,  2  Dev.  &  B.  196. 
*  State  V.  Matthews,  SO  N.  C.  417. 

5  Trial  of  Aaron  Burr,  Vol.  I.,  p.  418. 
«See  Whart.  St.  Tr.,p.  688. 


^64  TRIAL  OF  CHALLENGES.  [CH.   XII. 

substance,  "  Have  you  made  up  and  delivered  the  opinion 
that  the  prisoner  has  been  uuilty  of  publishin^ij  a  false, 
wicked  and  malicious  libel,  which  subjects  him  to  punish- 
ment under  the  act  of   Congress  on  which  he  is  indicted  ?  ' ' 

§  247.  Range  of  Examination. —  (1.)  For  Statutory 
Causes  of  VJiallenge. —  Where  a  statute  prescribes  certain 
questions  to  be  asked  of  jurors  as  a  test  of  their  compe- 
tency, it  has  been  held  that  the  counsel  cannot,  after  these 
(questions  have  been  put  and  answered,  demand  as  a  right, 
that  other  questions  shall  be  put  for  this  purpose.  "The 
whole  matter  relative  to  the  examination  of  jurors,  beyond 
the  provisions  of  the  statute,  is  one  that  must  be  left  to  the 
sound  judgment  and  judicial  discretion  of  the  presiding 
judge.  This  applies  not  only  to  the  propounding  of  further 
questions  to  the  jurors,  but  also  to  the  manner  of  putting 
them."  '  This  rule  was  subsequently  stated  with  a  marked 
qualification  by  Merrick,  J.,  of  the  same  court:  "Our 
courts,"  said  he,  "have  always  considered  that  it  was  not 
only  a  right,  but  a  duty,  to  go  bej'^ond  the  questions  pre- 
scribed by  the  statute,  whenever  a  proper  occasion  for  the 
•exercise  of  the  power  should  occur.  In  such  an  exigency 
the  proposed  juror  may  be  subjected  to  a  further  examina- 
tion, and  upon  other  and  different  topics  ;  or  his  fitness  and 
impartiality  may  be  ascertained  upon  a  consideration  of 
such  evidence  as  may  be  adduced  respecting  it.  But  this 
power  will  not  be  exercised  unless  some  good  and  sufficient 
reason  is  assigned  for  its  exercise."  ^ 

Where  a  statute  provides  that,  if  a  juror  shall  answer  in 

1  Com.  V.  Get",  G  Ciisli.  174,  177,  per  Dewey,  J. 

'Com.  V.  Thrasher.  11  Gray,  55,  56;  Pierce  v.  State,  13  N.  H.  536; 
-Tones  v.  iState,  2  Bhickf.  475,  478.  Contra,  Williams  v.  State,  3  Ga.  453, 
where  Lumpkin.  .J.,  deliverini^  the  opinion  of  the  court,  held  it  to  be 
improper  to  ask  any  other  questions  of  a  juror  than  those  autliorizcd  by 
statute,  witli  a  view  to  ascertaiuiiii^  whether  he  is  objectionable  for 
favor.  See  also.  King  v.  State,  21  Ga.  220;  Pines  v.  State,  21  Ga.  227; 
Monday  v.  State.  32  Ga.  672;  Bisliop  v.  State.  1)  Ga.  121 ;  Dumas  v.  State, 
()3  Ga.  600.  Compare  State  v.  Wilson,  7  Iowa,  407.  The  statutory  form 
of  questions  ma}^  be  varied,  in  order  to  make  their  import  clear  to  the 
uror.  Mitchell  v.  State,  22  Ga.  211 ;  Henry  v.  State,  33  Ga.  441 ;  Carte 
V.  State,  56  Ga.  463. 


^  247.]  RANGE  OF  EXAMINATION.  265 

the  affirmative,  that  there  is  established  in  his  mind  such  a 
conclusion  as  to  the  guilt  or  innocence  of  the  defendant,  as 
will  influence  him  in  his  action  in  finding  a  verdict,  "  Ae 
shall  he  discharged,'' —  this  injunction  is  imperative.  Hav- 
ing so  answered,  no  further  examination  is  permissible  to 
contradict  or  explain  the  previous  assertion,^ 

In  a  late  case,  decided  by  the  Texas  Court  of  Appeals,* 
an  indictment  for  horse-stealing,  the  jurors  were  asked 
upon  the  voir  dire  whether  they  had  any  bias  or  prejudice 
against  the  injured  parties.  The  court  seemed  to  regard 
the  statutory  causes  of  challenge  as  exclusive  of  all  others, 
^md  therefore  held  that  inquiries,  directed  to  other  causes  of 
favor  towards  the  injured  party,  must  be  irrelevant.  It  is 
settled,  however,  by  a  considerable  number  of  decided 
cases  in  this  State,  that  the  causes  of  challenge  enumerated 
in  the  statutes  are  not  exclusive  of  all  others.'^  The  inquiry 
proposed  in  this  case  would  seem  to  have  been  proper.^ 

(2.)  Upon  a  CliaUenge  to  tlie  Favor. —  Upon  a  challenge 
to  the  favor  considerable  latitude  must  be  allowed  in  the 
form  of  questions  to  test  the  indifference  of  the  juror. 
Upon  such  challenges  the  triors  find  a  conclusion  of  fact, 
and  therefore  no  certain  rules  can  be  laid  down,  as  in  the 
case  of  principal  challenges,  in  which  the  court  declares  a 
conclusion  of  law.  Thus,  the  juror  may  be  asked  whether 
he  ever  thought  the  accused  was  guilt}^  of  the  crime  in  ques- 
tion, and  the  challenging  party  is  not  restricted  to  the  form 
^'had  you  an  ojnnion,''  instead  of  "have  you  ever 
thought?"  ■'  And  so,  upon  such  a  challenge,  a  juror  may 
be  asked  whether  what  he  has  read  or  heard  has  made  any 
impression  on  his  mind  as  to  the  guilt  or  innocence  of  the 
Accused. "     But  the   court  was  careful   to   add  in    the  case 

1  Staguer  v.  State,  9  Tex.  App.  440. 

2  Jones  V.  State,  8  Tex.  App.  648. 

sLyles  V.  State,  41  172;  Lester  v.  State,  2  Tex  App.  433;  Williams 
V.  State,  44  Tex.  34;  Caldwell  v.  State.  41  Tex.  86;  Etlieiidge  v.  State, 
■8  Tex  App.  133. 

*  Hanks  v.  State,  21  Tex.  526. 

*  People  V.  Bodine,  Edm.  Sel.  Cas.  36.  77;  s.  c,  1  Den.  281. 

^  People  V.  Bodine,  supra.    Although  the  juror  answers  in  the  aftirnia- 


266  TRIAL  OF  CHALLENGES.  [CH.  XII. 

cited,  that  "  it  must,  of  course,  be  understood  that  no  opin- 
ion is  intended  to  be  expressed  or  even  intimated,  as  to  the 
sufficiency  of  any  of  the  various  grounds  of  challenge  to  the 
favor,  which  have  been  mentioned.  That  is  for  the  triors 
alone  to  pass  upon."  ^ 

It  is  competent  to  prove  that  the  juror  challenged  and 
the  opposite  party  are  upon  terms  of  great  intimacy  ;  that 
they  are  members  of  the  same  society,  partners  in  business, 
or  the  like.  "Indeed,"  said  Beardsley,  .1.,  "any  and 
every  fact  or  circumstance,  from  which  bias,  partiality,  or 
prejudice  may  justly  be  inferred  (although  very  weak  in 
degree)  is  admissible  on  this  issue  ;  and  the  inquiry  should 
by  no  means  ])e  restricted  to  the  isolated  question  of  a  fixed 
and  absolute  opinion  as  to  the  guilt  or  innocence  of  the 
prisoner."^  The  inquiry  is  not  limited  to  the  state  of  the 
juror's  mind  before  coming  into  court.  If  anything  has 
occurred  in  court,  which  tends  to  his  disqualification,  this 
maybe  shown. ^ 

§  248.  Irrelevant  Questions. —  Jurors  cannot  be  interro- 
gated as  to  whether  they  believe  in  a  future  state  of  re- 
wards and  punishments  ;  *  nor,  whether  they  have  formed 
or  expressed  an  opinion  as  to  the  credibility  of  a  witness, 
whose  testimony  is  to  be  relied  upon  in  su])port  of  the  in- 
dictment, who  testified  in  another  case  before  them,  where 
his  credibility  was  impeached.'*  Where  the  issue  to  be 
tried,  under  an  indictment  for  murder,  is  on  the  special 
plea    of    a    former    acquittal,  the    juror    cannot   be    asked 


tive,  the  triors  are  not  obliged  to  reject  liim,  if  they  are  satisfied  that, 
notwithstanding  such  impressions,  he  can  impartially  hear  the  evidence 
and  decide  the  case  in  accordance  therewith.  "  Tlie  influence  and 
effect  of  what  is  proved,  and  how  far  it  may  have  affected  the  mind  of 
the  juror,  the  good  sense  of  tlie  triors  must  determine."  People  v. 
Honeyman,  3  Den.  121,  124. 

1  See  also  Freeman  v.  People,  4  Denio,  0,  35 ;  People  v.  Honeyman,  3 
Denio,  121 ;  Smith  v.  Floyd,  18  Barb.  522. 

2  People  V.  Bodine,  Edm.  Sel.  Cas.  36,  78. 
'  Thompson  v.  People,  3  Park.  Cr.  11.  4G7. 

State  V.  Hamilton,  27  La.  An.  450. 
*  Com.  V.  Porter,  4  Gray,  423. 


^   250.]    REMEDY  FOR  DISALLOWANCE  OF  CHALLENGE.  267 

whether  he  has  formed  or  expressed  an  opinion  as  to  the 
jruilt  or  innocence  of  the  accused  as  charo;cd  in  the  indict- 
ment.^ 

§  249.  Trial  of  Challenges  for  "Implied  Bias"  and 
"Actual  Bias."  —  Under  the  statutory  system  of  chal- 
lenges pointed  out  in  a  previous  chapter,^  where  the  facts 
are  denied,  the  trial  of  both  forms  of  challenge  is,  in  most 
jurisdictions,  relegated  to  the  court.^  In  some  jurisdic- 
tions, the  determination  of  facts  under  a  challenge  for 
"  actual  bias  "  is  assigned  to  triors.*  However,  where,  by 
consent  of  the  parties,  the  court  is  substituted  for  the  triors 
in  the  determination  of  facts  upon  a  challenge  for  actual 
bias,  its  decision  will  be  final.* 

§  250.  Remedy  for  Disallowance  of  Challenge. —  The 
disallowance  of  a  statutory  or  principal  cause  of  challenge  is 
a  ground,  not  for  a  new  trial,  but  for  Avhat  is  strictly  and 
technically  a  venire  de  novo.  "The  party  complaining 
thereof,"  said  Lord  Tenterden,  "  applies  to  the  court,  not 
for  the  exercise  of  the  sound  and  legal  discretion  of  the 
judges,  but  for  the  benefit  of  an  imperative  rule  of  law  ;  and 
the  improper  granting,  or  the  improper  refusing  of  a  chal- 
lenge, is  alike  the  foundation  for  a  writ  of  error."  ^  But, 
upon  a  challenge  to  the  favor,  if  the  court  improperly  re- 

J  Josephine  v.  State,  39  Miss.  613. 

2  Ante,  §  173. 

3  New  York  Code  Criin.  Proc.  (Laws  1881,  ch.  442),  §  37G;  Ark.  Dig. 
Stat.  1874,  §  1910;  Bullitt's  Ky.  Cr.  Code,  p.  41,  §  209.  See  also,  Comp. 
L.  Ariz.  1877,  ch.  11,  §  319. 

■•  Comp.  L.  Nev.  1873,  §  1968;  2  Stat,  at  Large,  Minn.  1873,  p.  105.5, 
§234;  Gen.  Laws  Orcg.  1872  (Civil  Code),  §  168;  Cal.  Penal  Code,  §  1078. 
See  also  Sess.  Laws,  Utah,  1878,  §  246.  The  California  statute  has  been 
amended  since  the  date  of  the  edition  which  we  have  at  hand,  and  the 
challenge  for  actual  bias  is  now  determined  by  the  court.  See  Proffatt 
on  Jury  Trial,  §  167,  note. 

«  State  V.  Minis,  26  Minn.  183. 

«  Rex  V.  Edmunds,  4  Barn.  &  Aid.  471,  473;  Vicars  v.  Langham,  Hob. 
235;  Knyaston  v.  Shrewsbury,  Andrews,  85,  89;  Hesketh  v.  Braddock, 
3  Burr.  1847;  Reg.  v.  Gray,  6  Irish  C.  L.  259,  267;  Button  v.  Hun,  Cro. 
Eliz.  849;  Ex  parte  Vermilyea,  6  Cow.  555;  People  v.  Vermilyea,  7  Cow. 
108;  Mannv.  Glover,  14  N.  J.  L.  205;  State  v.  Shaw,  3  Ired.  L.532;  State 
V.  Davis,  80  N.  C.  412,  414. 


2fi8  TRIAL  OF  CHALLENGES.  [CH.  XII, 

fuses  to  appoint  triors  to  pass  upon  a  challenge  proper  for 
their  consideration,  the  error  may  be  corrected  by  a  bill  of 
exceptions.'  If  triors  are  appointed,  and  the  court  misdi- 
rects them  in  point  of  law,  the  alleged  misdirection  should 
be  entered  ujx)!!  the  record  ;^  and  so,  if  the  court  refuses  to 
allow  competent  evidence  to  bo  given  to  the  triors,*  or  ad- 
mits that  which  is  incompetent.'^ 

§  251.  How  affected  by  Statutes. —  Where  a  statute 
provides  simply  that  an  exception  may  be  taken  to  the  de- 
cision of  the  trial  court  in  disallowing  a  challenge,  no  ex- 
ception lies  to  the  action  of  the  court  in  allowing  a  chal- 
lenge. The  reason  is  that  when  a  competent  jury,  composed 
of  the  requisite  iiuml)er  of  persons,  has  been  impanelled  and 
sworn  in  the  case,  the  purpose  of  the  law  has  been  accom- 
])lished.  Neither  party  can  be  said  to  have  a  vested  inter- 
est in  any  juror  ;  therefore,  although,  in  impanelling  a  jury, 
one  competent  person  has  been  rejected,  yet,  if  another 
equally  competent  has  been  substituted  in  his  stead,  no  in- 
jury has  been  done.'^ 

By  the  criminal  code  of  Kentucky  all  challenges  are 
tried  b}^  the  court,  and  its  decision  in  no  case  is  subject  to 
exception.'^  In  the  view  of  some  courts,  where  the  trial  of 
all  challenges  is  conferred  upon  the  court,  unless  the  statute 
expressly  so  provides,  the  decision  of  the  court  upon  a  chal- 
lenge to  the  favor  cannot  be  reviewed.^  But  the  authorities 
are  not  uniform  upon  this  point.     On  the   contrary   it    is 

'  People  V.  Kiitlibuu,  21  Wend.  509;  People  v.  Bodiue.  1  Den.  281,  308; 
Baker  v.  Harris,  1  Winst.  N.  C.  277. 

-  State  V.  Benton,  2  Dev.  &  B.  19G,  222;  People  v.  Bodine.  supra. 

''  Mechanics'  etc.  Bank  v.  Smith,  19  .Johns.  115. 

^  Sanchez  v.  People,  22  N.  Y.  147,  151. 

■•  People  V.  Murphy.  45  Cal.  137,  overrnling  People  v.  Stewart,  7  Cal. 
140.  See  also  State  v.  Larkin,  11  Nev.  314;  People  v.  Brotherton,  43 
Cal.  530;  People  v.  Colson,  49  Cal.  G79;  People  v.  Atherton,  51  Cal. 
495. 

•■'Bullitt's  Ky.  Cr.  Code,  §  212;  Terrell  v.  Com.,  ]3  Bush,  246;  Ruth- 
<M-ford  V.  Com.,  13  Bush,  608;  Morgan  v.  Com.,  14  Bush,  106. 

7  Solander  v.  People,  2  Colo.  48,  02 ;  Jones  v.  People,  2  Colo.  351 ; 
Licett  V.  State,  23  Ga.  57;  Galloway  v.  State,  25  Ga.  596;  Eberhart  v. 
State,  47  Ga.  598. 


§    252.]  REVISORY  POWER  OF  APPELLATE  COURT,  269 

held  that,  under  such  circumstances,  the  better  rule  is  that  an 
appellate  court  ought  to  review  the  action  of  the  trial  court 
111  all  cases  as  to  the  competency  of  jurors.^ 

A  late  statute  of  New  York  provides  that  "  all  challenges 
of  jurors,  both  in  civil  and  criminal  cases,  shall  be  tried 
and  determined  by  the  court  only.  Either  party  may  ex- 
cept to  such  determination,  and,  upon  a  writ  of  error  or 
ce7-C'ionrn,  the  court  may  review  any  such  decision,  the  same 
as  other  questions  arising  upon  the  trial,"  '^  In  construing 
this  statute  the  Court  of  Appeals  say:  "  AVc  have,  there- 
fore, the  same  power  to  pass  upon  the  question  involved  in 
the  challenge  for  favor,  which  the  trial  court  had  ;  and  the 
question  to  be  determined  is,  was  the  juror  indifferent 
within  the  rule  of  law  applicable  to  such  a  case?"  ^ 

§  252,  lievisory  Power  of  Appellate  Court  to  be  cau- 
tiously exercised. —  In  the  exercise  of  this  jurisdiction  by 
the  reviewing  court,  there  is  lacking  an  important  element 
for  which  courts  uniformly  make  a  proper  allowance  in  re- 
viewing testnnony  in  general,  viz.,  the  presence  of  the  wit- 
nesses whose  testimony  is  the  subject  of  review.  Upon  this 
point  the  language  of  a  learned  judge  may  be  reproduced 
here  with  profit.  "  Human  language,"  said  he,  "is  so  im- 
perfect, at  best,  as  a  representative  of  thought,  and  written 
language  so  much  more  liable  to  misrepresentation  and  mis- 
construction, when  considered  and  reviewed  by  itself, 
remote  from  the  time  and  occasion  when  it  was  used,  and 
there  is  also  such  a  liability  to  misunderstand  or  misquote 
a  witness  or  juror,  that  it  is  altogether  more  safe  and  just 
to  the  juror  and  the  cause  of  truth,  to  trust  to  the  impres- 
sion made  at  the  time  by  the  testimony  upon  those  who 
heard  it,  noticed  the  manner,  tone,  appearance,  and  personal 
peculiarities  of  the  juror  while  under  examination,  and  sub- 


1  Winnesheik  lus,  Co,  v.  Schueller,  60  111.  465;  Montague  v.  Com., 
10  Gratt.  767;  Holt  v.  People,  13  Mich.  224;  Stevens  v.  People,  38  Mich. 
739;  State  v.  Pike,  49  N.  H.  399,  407. 

2  Laws  N.  Y.  1873,  ch.  427. 

3  Thomas  v.  People,  67  N.  Y.  218,  222,  opinion  by  Earl,  J.  See  also 
Greenfield  v.  People,  74  N.  Y.  277. 


270  TRIAL  or  CHALLENGES.  [CH.  XII. 

jected  to  the  wiitchful  scrutiny  of  the  court,  counsel  and 
jury,  in  the  court-room,  than  to  any  written  or  reported 
statement  of  his  testimony  afterwards."  ^  Therefore,  the 
rule  plainly  follows,  as  stated  by  Chief  Justice  Waite,'* 
that  the  finding  of  the  trial  court,  upon  the  issue  raised  by 
a  challenge  for  cause,  ought  not  to  })e  set  aside,  unless  the 
error  is  manifest.  "No  less  stringent  rules,"  said  he, 
"  should  be  applied  by  the  reviewing  court  in  such  a  case, 
than  those  which  govern  in  the  consideration  of  motions  for 
new  trial  because  the  verdict  is  against  the  evidence.  It 
must  be  made  clearly  to  appear  that,  upon  the  evidence,  the 
court  ought  to  have  found  the  juror  had  formed  such  an 
opinion  that  he  could  not  m  law  be  deemed  impartial.  The 
case  must  be  one  in  which  it  is  manifest  the  law  left  noth- 
ing to  the  '  conscience  or  discretion  '   of  the  court."  ^ 

§  253.  Record  must  show  what.  —  If  a  party  would 
avail  himself  of  an  erroneous  ruling  of  the  trial  court, 
upon  a  subject  of  challenge,  the  record  must  distinctly  set 
out  the  grounds  of  such  challenge.*  As  stated  by  Gaston, 
J.  :    "  Before  we  can  reverse  the  judgment  because  of  error 

>  People  V.  Stout,  4  Parker  Cr.  R.  71,  124,  opinion  by  E.  Darwin 
Smith,  J.  See  also  Thomas  v.  People,  67  N.  Y.  218,  222,  per  Earl,  J. ; 
The  State  v.  Tom,  8  Oregon,  177;  Jordan  v.  State,  22  Ga.  545;  Brad- 
ford V.  State,  15  Ind.  347;  March  v.  Portsmouth  etc.  R.  Co.,  19  N.  H. 
372;  People  v.  Henderson,  28  Cal.  466;  Campbell  v.  Com.,  84  Pa.  St.  187; 
May  V.  Elam,  27  Iowa,  365;  Davenport  Gas  Co.  v.  Davenport,  13  Iowa, 
229;  Coryell  v.  Stone,  62  Ind.  307. 

«  Reynolds  v.  United  States,  98  U.  S.  145. 

^  Ibid.,  p.  156.  See  also  Trenor  v.  Central  Paeiftc  R.  Co.  50  Cal.  222; 
Swiss  V.  Stockstill,  30  Ohio  St.  418;  Dew  v.  McDivitt,  31  Ohio  St.  139; 
.s.  c,  17  Am.  L.  Reg.  623.  Strongly  to  the  contrary  is  the  case  of  Montague 
V.  Com.,  10  Gratt.  767.  The  juror  had  formed  and  expressed  an  opinion 
as  to  the  innocence  of  the  accused.  He  was  a  neighbor,  and  on  intimate 
terms  with  tiie  prisoner's  family.  He  was  unwilling  to  trust  himself  as  a 
juror  under  the  circumstances,  but  thought  he  could  give  the  accused  a 
fair  trial  upon  the  evidence.  Tlie  trial  judge  set  this  juror  aside,  which 
action  the  Court  of  Appeals  held  to  be  error,  and  the  judgment  was  re- 
versed. 

■*  Ripley  v.  Coolidge,  Minor,  11 ;  Rash  v.  State,  61  Ala.  89;  Fillion  v 
State,  5  Neb.  351;  State  v.  Bullock,  63  N.  C.  570;  State  v.  Ellington,  7 
Ired.  L.  61 ;  People  v.  Bodine,  1  Den.  281,  308;  Baker  v.  Harris,  1  Wiast. 
X.  C.  277. 


§    253.]  RECORD  MUST  SHOW  WHAT.  271 

in'oveiTuling  the  challenges,  it  must  appear  that  they  were 
taken  for  sufficient  cause.  As  no  cause  is  distinctly  assigned, 
by  no  fair  intendment  can  we  assume  that  any  others  were 
understood  to  be  assigned,  or  were  in  fact  as  ^gned,  than  such 
as  the  record  shows  was  known  to  the  court  who  overruled  the 
challenges.  We  do  collect  from  the  record,  that  the  per- 
sons challenged  had  formed  and  expressed  an  opinion  on 
the  matter  there  to  be  tried  —  the  guilt  or  innocence  of 
the  prisoner  C  but  we  cannot  collect  whether  that  opinion 
affirmed  his  guilt  or  innocence,  for  the  record  furnishes  no 
information  that  any  inquiry  was  made  into  the  character 
of  that  opinion  as  favorable  to  the  State  or  to  the  pris- 
oner.'\^  As  a  matter  of  course,  the  decision  of  the  trial 
court  will  not  be  reviewed,  unless  the  testimony,  upon  which 
it  was  made,  is  embraced  within  the  bill  of  exceptions.^ 

1  State  V.  Benton,  2  Dev.  &  Bat.  196,  217. 

-State  V.  Tom,  8  Oreg.  177;   Haj'den  v.  Long,  8  Oieg.  244;  State  v. 
Kigg,  10  Nev.  284. 


272  IMPANELLING  THE  JURY.  [CH.  XIII. 


CHAPTER   XIII. 


OF    IMPANELLING    THE    JURY. 
SECTION. 

257.  Impanelled  —  Meaning  of  this  Term. 

258.  Duty  of  Court  to  supervise  tlie  Impanelling. 

259.  Excusing  Jurors. 

(1.)  In  the  Discretion  of  the  Court. 

(2.)  Some  sufficient  Reasons  —  Mental  and  Bodily  Defects. 
(3.)  Ignorance,  Conscientious    Scruples,  Hostility    to   the 
General  Government. 

260.  This  Power  to  be  exercised  with  Caution. 

261.  Remedy  for  Excusing  an  Unreasonable  Number  before  Impan- 

elling. 

262.  Jurors  prima  facie  Competent. 

263.  Who  may  challenge. 

264.  Counsel  to  assist  in  Challenging. 

265.  Time  for  Challenging. 

266.  Order  of  Challenges. 

(1.)  Challenges  to  the  Array,  for  Principal  Cause  and  to  the 

Favor. 
(2.)  Peremptory  Challenges. 

267.  Statutory  Forms  of  Impanelling  to  be  observed. 

268.  How  in  the  Absence  of  such  Provisions. 

269.  Illustrations. 

(1.)  Each  Juror  separately  impanelled. 

(2.)  Objections  to  this  Practice. 

(3.)  Impanelling  by  Fours. 

(4.)  Order  of  Challenging  between  Parties. 

(5.)  Continued — Challenging  alternately. 

(6.)  No  Right  of  Peremptory  Challenge  after  Acceptance. 

(7.)  A  contrary  View. 

(8.)  So  in  respect  to  Challenges  for  Cause. 

270.  A  Liberal  Discretion  allowed  the  Court. 

271.  No  vested  Right  to  a  particular  Juror. 

272.  As  seen  in  the  Case  of  Jurors  absent  when  called. 

273.  And  Jurors  set  aside  after  they  have  been  accepted  and  sworn, 

274.  A  Juror's  Right  to  serve. 


^    258.]  COURT  TO  SUPERVISP]  IMPANELLING.  273 

27r).     Waiver  of  Causes  of  Clialleno^e. 

(1 .)  Of  the  Challeiifi^e  to  the  Array,  by  Challenging  the  Polls. 

(2.)  Of  a  Cause  known  at  the  Time  of  the  Impanelling. 

(;{.)    Illustrations. 
27G.  Waiver  of  Exception  for  Disallowance  of  Good  Cause  of  Challenge 
to  a  Juror. 

(1.)  By  Omission  to  challenge  the  Juror  peremptorily. 

(2.)  A  contrary  View. 

(3.)  By  Challenging  peremptorily. 

(4.)  Unless  Peremptory    Challenges    are  subsequently  ex- 
hausted. 
■277.     Withdrawal  of  Challenge. 

278.  Exception  for  Irregularity  in  Impanelling. 

279.  Impanelling  in  Territorial  Courts. 

280.  Right  of  Challenge  to  the  Polls  of  a  Special  Jury. 

vj  257.  Impanelled  —  Meaning  of  this  Term. —  Refer- 
ring; to  an  earlier  chapter,  it  will  be  seen  that  this  term 
originally  had  a  much  narrower  meaning  than  that  now  gen- 
erally attributed  to  it.  It  appears  from  the  definition  of 
Lord  CoKE,^  that  the  term  was  applied  to  the  body  of  the 
jurors  when  the  sheriff  brought  them  into  court  with  their 
names  entered  upon  a  piece  of  parchment.  Adhering  to 
this  definition,  it  is  clear  that  this  designation  can  refer  to 
no  process  of  drawing,  selecting,  or  swearing  a  particular 
jury,  after  the  body  of  jurors  for  the  term  appear.^  But, 
curiously  enough,  the  general  understanding  of  this  term 
under  our  practice  is,  that  it  covers  all  the  steps  of  ascer- 
taining who  shall  be  the  twelve  men  to  sit  as  jurors  for  the 
trial  of  a  particular  case.^  A  jury  may  be  said  to  be  impan- 
elled when  they  are  ready  to  be  sworn,'*  and  in  this  sense 
the  term  is  used  in  the  caption  of  this  chapter. 

§  258.  Duty  of  C(nirt  to  supervise  the  Impanelling. — 
The  rule  is  well  settled  that  it  is  the  duty  of  the  court  to 
superintend  the  selection  of  the  jury,  in  order  that  it  may 
be  composed  of  fit  persons.     Large  discretion  must  be  con- 


^  See  ante.  p.  107,  note. 

*  Porter  v.  People,  7  How.  Pr.  441. 

3  1  Bish.  Cr.  Proc,  sec.  931;  Rich  v.  State,  1  Tex.  App.  206,  209. 

*  State  V.  Potter,  18  Conn.  166, 175;  Grissom  v.  State.  4  Tex.  App.  374, 
388;  Rich  v.  State,  supra. 

(18) 


274  IMPANELLINC;  TIIK  .TUKV.  [CH.  XIII. 

tided  to  tlic  ti-ial  court  in  the  i)erf()riiianee  of  this  duty  ;  nor 
will  the  action  of  the  court  in  this  behalf  he  made  the  sub- 
ject of  review,  unless  some  violation  of  law  is  involved,  or 
the  exercise  of  a  gross  and  injurious  discretion  is  shown.' 
It  is  not  uncommon  that  this  duty  is  expressly  enjoined 
by  statute.  Although  't  is  made  the  "  imperative  duty"  of 
the  court,  before  administering  to  the  juror  the  oath,  to  as- 
certain that  such  juror  possesses  the  qualifications  re<]uired  by 
law,  it  is  not  necessary  that  the  court  should  i)ly  the  jurors 
individually  with  iuijuiries  in  this  behalf,  it  is  sufficient 
that  the  judge  is  satisfied  of  their  fitness  from  his  [)orsonal 
knowledge  of  the  jurors,  their  answers  to  other  questions, 
their  reputation  for  integrity  and  intelligence  ;  and  his  judg- 
ment in  respect  of  such  qualifications  will  not  be  reviewed.^ 
§  259.  Excusing  Jurors.^ —  ( 1 ).  In  the  Discretion  of  the 
Court. —  It  follows  from  the  general  statement  of  the 
powers  of  the  court  over  the  process  of  imi)anelling,  as 
found  in  the  previous  section,  that  the  exercise  of  this 
power  is  a  matter  of  discretion.  The  circumstances  under 
which  this  power  is  ordinarily  exercised  will  be  presently 
noticed.  Nevertheless,  it  by  no  means  follows  that,  because 
certain  causes  have  been  declared  to  be  sufficient  to  jus- 
tify the  trial  court  in  excusing  a  juror,  the  sufficiency  of 
excuses  in  general  must  be  considered  as  a  matter  of  law. 
On  the  contrary,  it  may  be  regarded  as  a  generally  recog- 
nized rule,  that  the  discharge  of  a  juror  under  these  circum- 
stances is  a  matter  addressed  to  the  sound  discretien  of  the 
court,  which  will  not  be  reviewed,  in  the  absence  of  evidence 


1  Head  V.  State,  44  Miss.  731,  7.50.  See  also  Gilliam  v.  Brown,  43  Miss. 
041 ;  McCartj-  v.  State,  2G  Miss.  302;  Marsh  v.  State,  30  Miss.  627;  State 
V.  Marshall,  8  Ala.  302;  Smith  v.  State,  55  Ala.  1,  10;  McAllister  v.  State 
17  Ala.  434;  Johnson  v.  State,  58  Ga.  491;  Thomas  v.  State,  27  Ga.  287; 
Powers  V.  Presgroves,  38  Miss.  227;  Grady  v.  Early,  18  Cal,  108;  Garri- 
son v.  Portland,  2  Oreg.  123;  State  v.  Sheiledy,  8  Iowa,  477;  Chase  v. 
State,  46  Miss.  083;  State  v.  Ostrander,  18  Iowa,  435;  Pierce  v.  State,  13 
N.  H.536;  Hubotterv.  State,  32  Tex.  479. 

2  James  v.  State,  53  Ala.  380. 

'  See  the  corresponding  subject  of  the  right  to  stand  jurors  aside. 
Ante,  §    158. 


§   259.]  EXCUSING  JURORS.  275 

showing  prejudice  to  the  comphiiiiing  party  from  the  abuse 
of  such  discrotioii.^ 

As  iucideutcil  to  the  power  of  directing  jurors  who  are  un- 
challenged to  withdraw,  because  in  the  judgment  of  the 
court  they  are  not  qualified  to  discharge  the  duties  required 
from  jurors,  the  court  has  authority,  either  by  an  examina- 
tion of  the  jurymen,  or  of  any  other  witnesses,  to  ascertain 
matters  of  fact,  so  as  to  enable  it  to  exercise  this  power  dis- 
creetly.^ The  court  may,  ex  mero  motu,  examine  jurors  for 
grounds  of  partiality,  and  direct  them  to  stand  aside,  al- 
though unchallenged  by  either  party ,^  and  not  subject  to 
challenge.''  By  some  courts  it  has  been  considered  that  the 
jurors  thus  directed  to  stand  aside  are  not  rejected  ;  if  the 
remainder  of  the  panel  is  gone  through  and  a  jury  not  pro- 
cured, resort  must  be  had  to  those  jurors  directed  to  stand 
aside;    they  must  then  be  tried  upon  challenges,  and  for- 

1  Ray  V,  the  State,  4  Tex.  App.  450;  Com.  v.  Livenuore,  4  Gray,  18; 
Atlas  Mining  Co.  v.  John&ton,  23  Mich.  37;  Ware  v.  Ware,  8  Me.  42; 
Hurley  v.  State,  29  Ark.  17,22;  State  v.  Ward,  39  Vt.  225;  Maner  v. 
State,  8  Tex.  App.  361 ;  O'Brien  v.  Vulcan  Iron  Works,  7  Mo.  App.  257; 
Watson  V.  State,  63  Ind.  548;  State  v.  Dickson,  6  Kan.  209;  Dodge  v. 
People,  4  Neb.  220;  Anderson  v.  Wasatch,  etc.  R.  Co.,  2  Utah,  518.  But 
contra,  see  Montague  v.  Com.,  10  Gratt.  767;  Boles  v.  State,  13  Smed.  & 
M.  398 ;  Parsons  v.  State,  22  Ala.  50.  The  action  of  the  court  in  excusing 
jurors  will  be  regarded  as  projier,  although  no  cause  appears  of  record. 
State  V.  Whitman,  14  Rich.  L.  113;  State  v.  Breaux,  32  La.  An.  222.  It 
was  so  held  where  it  appeared  from  the  record  that  the  juror  was  ex- 
cused "  to  relieve  him  from  embarrassment."  John  v.  State,  16  Fla.  554. 
But  see  Montague  v.  Com.,  10  Gratt.  767.  A  sheriff  has  no  power  to  ex- 
cuse jurors.  But  an  appellate  court  will  not  infer  that  a  sheriff  who  has 
excused  a  portion  of  the  panel  did  so  from  improper  motives,  nor  that 
such  action  i)rejudiced  any  party.     Ayers  v.  Metcalfe,  39  III.  307. 

2  State  V.  Benton,  2  Dev.  &  B.  196,  221;  White  v.  State,  52  Miss.  217; 
Pierce  v.  State,  13  N.  H.  536. 

3  Atlas  Mining  Co.  v.  Johnston,  23  Mich.  36;  Lore  v.  State,  4  Ala.  173; 
Pierce  v.  State,  13  N.  H.  536 ;  State  v.  Jones,  80  N.  C.  415 ;  White  v.  State, 
52  Miss.  216;  Stagner  v.  State,  9  Tex.  App.  440,  455;  Lewis  v.  State,  9 
Smed.  &  M.  115;  Marsh  v.  State,  30  Miss.  627.  Contra,  Van  Blaricura 
v.  State,  16  111.  364;  Deun  v.  Pissant,  1  N.  J.  L.  220. 

*  Hartford  Bank  v.  Hart,  3  Day,  491;  Goodrich  v.  Burdick,  26  Mich. 
39;  State  v.  Lewis,  28  La.  An.  84;  State  v.  Williams,  30  Me.  484;  Watson, 
v.  State,  63  Ind.  548;  Stout  v.  Hyatt,  13  Kan.  232;  Atchison,  etc.  R.  Co 
V.  Franklin,  23  Kan.  75. 


27H  IMPANELLING  THE  JURY.  [CH.  XIII. 

mally  adniitlod  or  rojcctod,  before  t;ile-;incn  can  be  sum- 
moned.' 

The  forbeaiance  of  the  court  to  set  aside,  of  its  own  mo- 
tion, a  juror  apiinst  whom  a  cause  of  challenge  exists,  to 
the  knowledge  of  the  court  and  the  parties,  cannot  be  as- 
signed for  error  by  either  of  the  latter.  In  such  a  case,  if 
a  party  would  ol)ject  to  the  juror  he  is  l)ound  to  challenge 
him.  A  failui-c  to  do  so  will  be  construed  as  a  waiver  of 
the  juror's  incomi)etcncy."^  The  power  of  the  court  to  ex- 
cuse a  juror  for  satisfactory  reasons  is  not  impaired  by  a 
statutory  provision  to  the  effect  that  "the  twelve  first  per- 
sons who  shall  appear,  as  their  names  are  drawn  and  called, 
and  shall  be  approved  as  indifferent  between  the  parties, 
shall  be  sworn,  and  shall  be  the  jury  to  try  the  cause."  ' 
A  struck  juror  may  be  excused  for  a  sufficient  reason.*  Hut 
where  jurors  are  summoned  upon  a  special  venire,  it  is  held 
that  no  juror  can  be  excused  until  his  name  is  regularly 
called  in  court.'' 

(2.)  Some  sufficient  Reasons — Mental  and  Bodily 
Defects. —  A  frequent  and  proper  exercise  of  this  discretion 
is  found  in  the  practice  of  excusing  persons  manifestly  inca- 
pal)le,  by  reason  of  physical  or  mental  infirmities,  to  dis- 
charge the  duties  of  a  juror. ^  It  has  been  so  held  in  the 
case  of  those  deaf,^  or  intoxicated.*  AVhen,  by  reason  of 
his  personal  illness,  a  juror  is  unable  to  withstand  the  fa- 
tigue of  the  trial,  the  action  of  the  trial  court  in  excusing 
him  does  not  present  a  proper  subject  for  revision  by  an  ap- 

»  Boardman  v.  Wood,  .'?  Vt.  570.  .577;  Unit(;d  States  v.  Watkins,  3 
Crancb  C.  C,  578;  State  v.  Howard.  17  X.  H.  171,  180.  See  in  this  con- 
nection, ante^  §  158. 

2  State  V.  Benton,  2  Dev.  &  B.  196;  Murphy  v.  State,  37  Ahi.  142;  Bel- 
lows V.  Weeks,  41  Vt.  590;  Young  v.  State,  23  Ohio  St.  577;  Skinner  v. 
State,  53  Miss.  399;  State  v.  Christian.  30  La.  An.  367. 

3  Atlas M.  Co.  V.  Johnston,  23  Mich.  37. 

4  Stewart  v.  State,  1  Ohio  St.  66. 

5  Foster  v.  State,  8  Tex.  App.  248;  Robles  v.  State,  5  Tex.  App.  346. 
«  Mansell  v.  Reg.,  8  El.  &  Bl.  .54,  80. 

'  Atlas  Mining  Co.  v.  .Johnston,  23  Mich.  36;  Jesse  v.  State,  20  Ga.  156. 
•*  Bullard   v.  Spoor,  2  Cow.  430;  Pierce   v.  State,  13  X.  H.  536,  555; 
Nolen  V.  State,  2  Head,  520. 


§   259.]  EXCUSING  JURORS.  2V7 

pellate  court.'  Sickness  in  the  family  of  the  juror  is  also  a 
suflficient  reason  for  dispensing  with  his  attendance.  Rea- 
sons of  policy,  as  Avell  as  compassion  for  the  juror  under 
such  circumstances,  dictate  this  course.  The  juror  may  be 
fairly  presumed  to  be  in  such  a  state  of  mind  that  he  cannot 
discharge  the  duties  which  would  devolve  upon  him,  with 
that  degree  of  patience,  calmness  and  deliberation,  which 
the  trial  of  causes  demands.'^ 

(3.)  Ignorance,  Conscientious  Sci'uples,  Hostility  to  the 
General  Government. —  In  addition  to  the  grounds  just  no- 
ticed, the  court  may  stand  the  juror  aside  when  ignorant  of 
the  English  language  ;^  in  a  capital  case,  when  having  a  fixed 
opinion  against  capital  punishment.*  In  any  case,  it  seems 
clear  that  one  entertaining  a  present  and  unrelenting  hos- 
tility to  the  government  of  the  United  States,  may  be 
deemed  to  be  an  unlit  person  to  participate  in  the  adminis- 
tration of  justice.^ 

1  Jewell  V.  Com.,  22  Pa.  St.  94;  Ray  v.  State,  4  Tex.  App.  450;  Hub- 
bard V.  Gale,  105  Mass.  511. 

2  Parsons  v.  State,  22  Ala.  50,  53.  It  has,  however,  bees  held  that  the 
juror  should  be  excused  only  in  those  oases  of  such  a  serious  character  as 
demand  his  personal  attention,  and  that  the  decision  of  the  court  upon 
this  point  may  be  reviewed.  Boles  v.  State,  13  Smed.  &  M.  398;  Parsons 
V.  State,  supra. 

'  Atlas  Mining  Co.  v.  Johnston,  23  Mich.  36;  State  v.  Kosseau,  28  La. 
An.  579;  People  v.  Arceo,  32  Cal.  40;  State  v.  Marshall,  8  Ala.  302;  State 
V.  Guidry,  28  La.  An.  630.  In  Campbell  v.  State,  4S  Ga.  353,  it  was  held 
that  the  court  had  no  right  to  purge  the  panel  of  jurors,  returned  for  ser- 
vice during  the  term,  of  such  jurors  as  could  neither  write  the  English 
language  nor  read  the  Constitution  of  the  United  States,  and  of  the  State 
of  Georgia.  It  was  held  that  a  challenge  to  the  array  after  such  purging 
ought  to  have  been  sustained.  Whether  this  decision  can  be  supported, 
is  doubtful.  It  is  certainly  true  that  the  grounds  upon  whicli  these  jurors 
were  excused  do  not  constitute  a  cause  of  challenge.  White  v.  State,  52 
Miss.  216,  224;  American  Ins.  Co.  v.  Mahoue,  56  Miss.  180;  Citizens' Bank 
V.  Strauss,  26  La.  An.  736;  State  v.  Lewis,  28  La.  An.  84;  Com.  v.  Win- 
nemore,  1  Brewst.  356;  s.  c,  2  Brewst.  378.  But  it  has  been  held  that  al- 
though a  challenge  is  allowed  upon  this  ground,  a  new  trial  will  not  be 
granted,  unless  it  appears  that  the  defendant  has  suffered  inconsequence 
of  such  ruling.     Citizens'  Bank  v.  Strauss,  supra. 

*  United  States  v.  Cornell,  2  Mason,  91 ;  Waller  v.  State,  40  Ala.  325; 
Russell  V.  State,  53  Miss.  367;  White  v.  State,  52  Miss.  216;  Fortenbeiry 
V.  State,  55  Miss.  403. 

»  Klinger  v.  State,  13  Wall.  257. 


27.S  IMPANELLING  THE  JURY.  [CH.  XIII. 

§  2()().  Til  is  I^oAvor  to  b<'  exorcised  with  Caution. — 
There  can  he  no  doubt  that  there  is  need  of  caution  by  the 
trial  judge  in  the  exercise  of  this  discretion  in  excusing 
jurors.  The  reason  is  found  in  the  fact  that,  where  any  con- 
siderable number  of  the  regular  panel  is  excused,  the  trial 
of  the  case  frequently  falls  into  the  hands  of  a  jury  less 
qualified  to  do  justice  in  the  premises.'  This  point  is  ad- 
verted to  by  Dillon,  J.  :  "  Talesmen,"  said  he,  "  are  too 
apt  to  consist  of  those  who  haunt  the  court  room  for  the 
express  purpose  of  being  called  b}^  a  comphiisant  or  im- 
portuned sheriff  to  till  up  the  skeleton  panel.  Their  aver- 
age intelligence  is  less  than  that  of  the  regular  jury.  Than 
the  regular  juror,  the  talesman  is  more  apt  to  have  his 
favorite  among  the  attorneys,  and  is  more  accessible  to  in- 
fluences of  an  improper  character.  The  evil  in  some  of  the 
States  is  so  great  that  it  has  been  found  necessary  to  aim  a 
statute  at  '  professional  jurors.'  "  ^ 

§  261.  Remedy  for  Excusing  an  Unreasonable  Number 
before  Impanelling. —  If  the  court,  by  a  general  order,  dis- 
charge jurors  for  no  other  reason  than  that  they  desire  to 
be  excused,  thereby  reducing  the  panel  below  the  number 
required  for  the  trial  of  a  cause,  this  has  been  held  to  be  a 
good  ground  of  challenge  to  the  array;*  but  the  right  to 
make  this  challenge  may  be  waived  by  objecting  to  such 
action  of  the  court  in  another  form  ;  as  where,  under  such 
circumstances  a  cause  coming  on  for  trial,  the  plaintiff's 
counsel  moved  to  postpone  the  case,  which  motion  being 
overruled,  a  tahi<  was  ordered  against  his  ()l)jection,  and  the 
case  proceeded  to  trial.  It  was  hold  that  the  decision  of 
the  court  upon  the  motion  to  p()stj)C)ne  was  final,  and  not  to 

'  For  this  rosison  tlie  c-ouit  or  oilier  triors  of  a  ciiaiienge  should  be 
quick  to  detect  attempts  of  juiors  to  disqualify  theuiselves  from  service 
by  expressions  of  opinion  in  a  particular  casein  order  that  they  may 
escape  the  burden  of  jury  duty.  People  v.  Iloneyman,  3  Denio,  121. 
An  opinion,  however  positively  expressed,  does  not  affect  a  juror's  com- 
petenc)'.  when  made  with  this  purpose  in  view.     Ante,  §  210. 

2  State  V.  Oslrander.  IS  [owa.  4:'.5.  440,  citing  Bissell  v.  Ryan, 
23  111.  .^06. 

3  Smith  V.  Chnton.  20  N.  .f.  L.  ?,:>d<. 


§   262.]  JURORS  PRIMA  FACIE  COMPETENT.  279 

be  reviewed  by  writ  of  error.  The  jury  having  been  sworn 
without  a  challenge  to  the  array,  became  a  legal  jury, 
•although  the  [)revious  decision  was  erroneous.^ 

§  2t)2.  Jurors  Prima  Facie  Competent. —  Prima  facie y 
jurors  are  competent,  and  must  be  so  regarded  by  an  appel- 
late court  \i\yon  a  review  of  the  proceedings  of  the  court 
below,  unless,  by  a  fair  construction  of  the  evidence  there 
given,  it  can  be  seen  that  an  error  was  committed  in  over- 
ruling the  challenge.^  But  this  view  has  not  universally 
prevailed.  On  the  contrary,  it  has  been  said  that,  in  crim- 
inal cases,  the  testimony  in  regard  to  the  competency  of  a 
juror  "  should  be  construed  with  liberality  to  the  defendant, 
in  the  humane  spirit  which  pervades  our  criminal  laws  and 
the  rules  of  their  administration. '¥  And  so,  where  the 
evidence  might  have  been  interpreted  as  showing  that  the 
opinion,  which  a  juror  entertained  as  to  the  guilt  of  a  per- 
son on  trial,  was  only  an  hypothetical  impression,  not 
affecting  his  indifference  as  a  juror,  but,  on  the  other  hand, 
another  interpretation  was  possible,  namely,  that  the  juror 
had  a  fixed  opinion  as  to  the  guilt  of  the  prisoner,  which 
could  only  be  removed  by  evidence  on  the  trial  in  behalf  of 
the  accused,  —  the  court  held  that  the  latter  construction 
should  have  been  adopted,  and,  therefore,  reversed  the 
judgment  of  the  court  below  holding  him  to  be  a  competent 
juror.* 


'Smith  V.  Clayton,  29  N.  J.  L.  358;  Gropp  v.  People,  67  111.  184; 
Eineiick  v.  Sloau,  18  Iowa,  140;  Suttle  v.  Batie,  1  Iowa,  141.  A  chal- 
lenge to  the  array  may  be  waived  after  it  has  been  taken,  by  the  chal- 
lenging party  consoiifing  to  the  removal  of  the  objectionable  persons 
from  the  panel.     Whitley  v.  State,  ;{8  Ga.  50. 

■i  Stout  V.  People,  4  Parker  Cr.  R.  71,  108;  United  States  v.  Watkins,  3 
Cranch  C.  C.  570 ;  Reynolds  v.  United  States.  98  U.  S.  145, 157 ;  Bradford  v. 
State,  15  Ind.  348;  Clore\s  Case,  8  Gratt.  606,  616;  Byrd  v.  State,  1  How. 
(,Miss.)  163.175;  Chase  v.  People,  40  111.  352,  357;  Holt  v.  People, 
13  Mich.  224,  228;  Com.  v.  Fitzpatrick,  3  Clark  (Penn.),  520;  Jeffries, 
v.  Com.,  12  Allen,  145. 

3  Cancemi  v.  People,  16  N.  Y.  501. 

■•  Cancemi  v.  People,  16  N.  Y.  501.  When,  upon  the  examination  of 
a  juror,  it  is  doubtful  whether  he  is  impartial  or  not.  the  safer  course  is 
to  reject  him;     Black  v.  State,  42  Tex.  377. 


280  IMPANELLING  THE  JUUY.  [CH.  XIII. 

$  2(.)3.  Who  may  clialloiijj^e. —  Tliis  .subject  was  consid- 
ered at  length  in  an  old  ease.^  It  was  admitted  by  the  coun- 
sel upon  both  sides  that,  a  peer  being  a  party,  either  party 
might  challenge  the  array  where  no  knight  was  returned, — 
the  peer,  because  the  challenge  was  accorded  to  him  proyter 
dignitatem;  but  particularly  the  commoner  might  complain, 
for  the  j)eculiar  reason  that  "  ordinary  j)cople  are  apt  to 
be  oyerawed  and  iutiuenced  where  a  peer  is  a  party."  '^ 
The  point  especially  discussed  in  this  case  was,  whether  the 
defendant  might  challenge  the  array,  because  the  sheriff  of 
the  county  who  returned  the  juiy  was  one  of  the  aldermen 
of  the  defendant.  It  was  urged  for  the  plaintiff  that  a  chal- 
lenge jorop^er  affectum  could  only  be  made  by  the  party  to 
whom  the  sheriff  or  jury  was  not  related,  it  being  quite 
iirational  that  a  person  should  challenge  either  of  them  for 
bias  in  favor  of  himself.  This  question  seems  to  have 
vexed  the  judges  sorely.  It  had  never  been  raised  before. 
The  judge  of  the  assize  adjoui'iied  the  matter  propter  diffi- 
cultatem.  The  Court  of  King's  Bench,  after  a  lengthy  ar- 
gument, took  time  to  advise.  Finally,  the  solicitor  of  the 
plaintiff,  for  the  sake  of  expediting  the  trial  of  the  cause, 
moved  to  (juash  the  array,  which  was  done,  and  the  point 
was  therefore  undetermined.^ 

However,  it  is  now  generally  agreed  that  a  party  is  en- 
titled to  waive  a  cause  of  challenge  which  he  might  allege 
against  a  juror,  and  thereby  suffer  the  juror  to  sit  in  the 
case.^  Thus,  the  accused  can  derive  no  advantage  from  a 
statute  providing  that,  in  all  trials  for  ca})ital  or  peniten- 
tiary punishments,  it  is  a  good  ground  of  challenge  for  cause 
hy  the  State,  that  the  juror  has  a  fixed  opinion  against  cap- 
ital or  penitentiary  punishments.  The  State  may,  at  its 
election,  challenge  the  juror  for  the  cause  mentioned.*^  In 
a  criminal  case  the  prisoner  was  not  permitted  to  challenge 

^  Knyaston  v.  Shrewsbury,  Andrews,  85. 

'  Anon.,  Anderson,  272 ;  Allewiiy  v.  Rowdeu,  2  Show.  423. 

"Ibid., p.  104. 

*  People  V.  Mather,  4  Wend.  229,  246. 

»  Murphy  v.  State,  37  Ala.  142. 


§   264.]  COUNSEL  TO  ASSIST  IN  CHALLENGING,  281 

a  juror,  simply  because  he  was  his  first  cousin.  The  court 
adverted  to  the  reason  for  the  disqualification  of  kinsmen, 
as  assigned  by  Lord  Coke,  namely:  "The  law  presumeth 
that  one  kinsman  doth  favor  another  before  a  stranger  ;  "  ' 
therefore,  although  this  relationship  would  have  been  a 
good  cause  of  challenge  to  the  juror  by  the  prosecution,  it 
could  not  avail  the  prisoner.^  Where  the  sheriff  was  re- 
lated to  both  parties  in  the  same  degree,  it  was  held  that 
either  might  challenge  the  array  upon  this  account.^  A 
juror,  aware  that  he  is  disqualified  to  sit  in  a  case  for 
which  he  is  called,  may  be  discharged  upon  his  own  motion, 
or,  as  it  is  said,  challenge  himself.'* 

§  264.  Counsel  to  assist  in  Challenging. —  Although,  in 
the  early  criminal  cases,  the  accused  was  denied  the  benefit 
of  counsel  for  the  purposes  of  his  defense,  this  defect  was 
later  so  remedied  as  to  give  to  the  accused  the  full  benefit 
of  this  assistance.  From  the  first,  in  this  country,  the  con- 
stitution of  the  general  government  and  those  of  the  re- 
spective States  have  guaranteed  to  persons  accused  of  crime 
every  facility  for  making  a  full  defense.  It,  therefore, 
seems  strange  to  find  that  the  accused  has  ever  been  denied 
the  benefit  of  his  counsel's  advice  in  the  matter  of  chal- 
lenges. Yet  so  it  was  in  one  case  in  Louisiana.  But  the 
Supreme  Court  of  that  State  did  not  countenance  that  de- 
nial. "  The  moment,"  said  Preston,  J.,  "at  which,  per- 
haps, it  is  most  seasonable  and  necessary  that  a  person 
accused  of  a  crime  should  have  dd  and  counsel,  is  that  when 
he  is  about  to  be  put  upon  his  trial  for  the  offense,  and  to 
select  the  jury  for  his  trial."  ^  If  a  party  have  more  than  one 

1  Co.  Litt.  157.  a. 

*  State  V.  Ketchey,  70  N.  C.  621. 

3  Audley  v.  Suttrel,  Cro.  Eliz.  23. 

<  United  States  v.  Cornell,  2  Mason,  91,  104;  Auzan's  Case,  2  Mart. 
(La.)  125.  Contra^  Denn  v.  Pissant,  1  N.J.  L.  220;  Lingau  v.  Marbury,^ 
1  Crant'h  C.  C.  365. 

*  State  V.  Cummings,  5  I^a.  An.  330,  332.  The  court  will  not  permit 
counsel  to  argue  before  the  triors  the  question  of  the  competency  of  a 
juror  upon  a  challenge  to  the  favor.  Joicev.  Alexander,  1  Crunch  C.  C. 
528. 


282  IMPANELLING  THE  JURY.  [CH.   XIII. 

counsel,  it  seems,  ho  is  not  concluded  \)y  the  acceptance  of 
a  juror  by  one  of  them,  if  the  acceptance  be  at  once  with- 
drawn, and  both  counsel  join  in  a  peremptory  challenge. 
*'  Under  such  circumstances,"  saidBucKNEU,  J.,  to  "  bind  a 
party  by  the  hasty  declaration  of  acceptance  by  one  of 
the  counsel,  without  consultation,  as  it  would  seem  from  the 
record,  would  be  adopting  a  rule  by  far  too  rigid,  even 
viewinof  it  as  a  matter  within  the  discretion  of  the  court."  ^ 

§  265.  Time  for  Challenging. —  There  can  be  no  chal- 
lenge either  to  the  array  or  to  the  polls  until  a  full  jury 
appears  ;  '^  therefore,  at  common  law,  for  the  purpose  of 
ascertaining  whether  a  full  panel  were  present,  as  well  as 
for  aiding  the  accused  in  taking  his  challenges,  the  court, 
upon  the  request  of  the  accused,  would  order  the  whole 
panel  to  be  called  over  once  in  the  prisoner's  hearing.^ 

The  common  law  was  explicit  in  requiring  the  challenge 
to  be  made  before  the  juror  was  sworn. ^     This  is  the  prac- 


'  Clarke  v.  Goode,  G  J.  J.  Marsli.  037,  G38. 

-  1  Cliitty  Cr.  L.  544;  Forsyth,  Trial  by  Jury,  177;  Joy  on  Cliallenges, 
217;  Vicars  v.  Langhani,  Hob.  235;  Keg.  v.  Lacey,  3  Cox  C.  C.  517; 
Taylor  v.  Western  racifie.  45  Cal.  323;  People  v.  Scoggins,  37  Cal.  679; 
St.  Louis,  ere.  R.  Co.  v.  Wheelis,  72  111.  538;  Cooley  v.  State,  38  Tex. 
636,  638;  Lamb  v.  State,  36  Wis,  424.  Where  the  statute  provided  that 
there  should  be  summoned  and  returned  in  every  criminal  cause  a  mim- 
ber  of  qualified  jurors  equal  to  the  number  of  peremptory  challenges, 
and  twelve  in  addition;  and  that  uo  partj'  should  be  required  to  make 
peremptory  challenges,  before  a  panel  of  such  number  of  competent 
jurors  was  obtained  (Wagn.  Mo.  Stat.  1102,  §  7),  it  was  held  that  the 
State  could  not.  bj'  a  waiver  of  her  peremptory  challenges,  compel  the 
prisoner  to  make  his  challenges  from  a  panel  diminished  by  the  number 
of  challenges  f-o  waived..  State  v.  Wati-rs,  62  Mo.  196;  s.  c,  1  Mo. 
App.  7. 

3  Townly's  Case,  Foster  C.  L.  7 ;  Layer's  Case,  16  How.  St.  Tr.  132. 

*  Wharton's  Case,  Yelverton,  24;  Vicars  v.  Langham,  Hob.  235; 
Blewett  v.  Bainard.  1  Stra.  70;  Tyndal's  Case,  Cro.  Car.  291.  How- 
ever, the  juror  might  be  withdrawn  by  consent  of  the  adverse  party. 
Gates'  Case,  10  How.  St.  Tr.  1082.  A  juror  may  be  challenged  for  a 
cause  happening  since  he  wassworn.  Co.  Litt.  158.  a.;  Vicars  v.  Lang- 
liam,  Hob.  235;  United  States  v.  Watkins,  3  Cranch  C.  C.  441.  Not  so 
the  panel;  for,  as  stated  by  Ilobart,  '•  no  ill  affection  of  the  sheriff,  aris- 
ing since  the  jury  sworn,  can  make  the  jury  suspected,  that  was  im- 
panelled before."     Vicars  v.  Langham,  Hob.  235. 


^    265.]  TIME  FOR  CHALLENGING.  283 

tice  in  England  :it  the  present  time,'  and  such  is  the  rule  in 
the  sevend  States."^  If  theiirst  step  has  been  made  towards 
swearing  the  jurors,  the  officer  of  the  court  cannot  be  in- 
terrupted for  the  purpose  of  making  a  challenge.  "The 
rule,"  said  Tindal,  C.  J.,  "  is  that  challenges  must  be 
made  as  the  jurors  come  to  the  book,  and  before  they  are 
sworn.  The  moment  the  oath  is  begun,  it  is  too  late,  and 
the  oath  is  begun  by  the  juror  taking  the  book,  having  been 
directed  by  the  officer  of  the  court  to  do  so."^  Likewise, 
if  a  juror,  who  is  to  affirm,  has  been  called  to  his  feet,  it  is 
too  late  to  challenge  him.* 

'  Reg.  V.  Sullivan,  1  Fer.  &  Dav.  96;  s.  c.  8  Ad.  &  El.  831;  Reg.  v. 
Wardle.  Car.  &  M.  647;  Rex  v.  Despard,  2  Man.  &  Ry.  406,  409;  Reg.  v. 
Key.  3  Car.  &  K.  371 ;  s.  c,  15  Jur.  1065.  The  discretion  of  the  court 
to  allow  an  objection  to  a  juror  after  he  has  been  sworn,  which  is  gene- 
rally recognized  in  this  country  (post,  §  273),  seems  to  have  been  con- 
ceded In  one  case.     Reg.  v.  Flint.  3  Cox  C.  C.  66. 

2  United  States  v.  Watkins.  3  Cniuch  C.  C.  443 ;  Epps  v.  State.  19  Ga.  102 ; 
State  V.  Williams,  2  Hill.  381 ;  Ward  v.  State,  1  Humph.  254;  McFadden  v. 
Com.,  23 Pa.  St.  12. 17;  Queen  v.  Hepburn,  7  Cranch,  290;  State  v.  Ander- 
son, 4  A  ev.  265 ;  Rash  v.  State.  61  Ala.  89 ;  State  v.  Morea,  2  Ala.  275 ;  State 
V.  Patrick.  3  Jones  L.  443;  Nugent  v.  Trepagnier.  2  Martin.  205;  Com. 
V.  Gee,  6  Cush.  174.  Statutes  are  found  in  many  of  the  States  author- 
izing the  court,  for  reasons  satisfactory  to  itself,  to  hear  any  objection  to 
a  juror  even  after  he  has  been  sworn,  before  tlie  jury  is  complete.  Stat, 
at  Large,  Minn.  I.s73,  p.  1055.  §  229;  Gen.  Laws  Greg.  1872,  Civ.  Code, 
§  188;  Comp.  L.  Nev.  1873.  §  1958;  Ark.  Dig.  Stat.  1874.  §  1S05;  Miller's 
R.  C.  Iowa,  1880.  §  2709;  Biillitfs  Cr.  Code  Ky.,  p.  41,  §  202;  Cal.  Penal 
Code,  §  1008.  See  People  v.  Rodriguez.  10  Cal  50.  Or  before  evidence 
is  introduced  to  the  jury.  Comp.  L.  Kan.  1879,  §  4698;  Code  Ga.  1873, 
■§  4681 ;  R.  S.  Mo.  1879,  §  1898.  See  also  G.  S.  Mass.,  ch.  132,  §  31 ;  R.  S. 
Me.  1871.  ch.  82.  §  77;  Laws  N.  Y.  1881,  ch.  442,  §  371;  Code  Va.  1873, 
p.  1062.  §  20;  R»n .  Stat.  W.  Va.  1870.  ch.  109,  §  24;  Gen.  Stat.  R.  I.  1872, 
p.  434,  §  33. 

'Reg.  V.  Frost.  9  Car.  (!v:  P.  129.  137.  See  also  Brandretli's  Case, 
32  How.  St.  Tr.  755.  777;  Morris"  Case.  4  How.  St.  Tr.  1255:  State  v. 
Davis,  80  N.  C.  412;  Com.  v.  Marrow,  3  Brewst.  402.  This  differs  from 
the  Irish  practice.  By  that  practice  it  has  been  generally  held  that  the 
oath  is  not  commenced  until  after  the  clerk  of  the  Crown  has  said: 
"Juror,  look  upon  the  prisonei-;  prisoner.  look  upon  the  jiu-or.""  Reg.  v. 
Hughes,  2  Craw.  &  Dix.  Cir.  396. 

*  Com.  V.  Marrow*.  3  Brewst.  402;  s-.  r..  kiiJ>  nam.  Com.  v.  Marra, 
8  Phila.  440.  In  Drake  v.  State,  51  Ala.  30,  the  juror  had  been  accepted, 
and,  as  he  rose  from  his  seat  in  the  box  to  be  sworn,  the  defendant  chal- 
lenged him  peremptorily.     It  was  held  tliat  the  challenge  was  not  taken 


284  IMPANELLING  THE  JURY.  [CH.  XIII. 

§  266.  Order  of  Cballeiijfes. —  (1.)  Challenges  to  the 
Array,  for  Principal  Cause,  and  to  the  Favor. —  It  is  a 
familiar  rule  tliat,  if  a  parly  has  more  than  one  cause  of 
challciigo,  he  must  take  them  all  at  once.'  The  proper  in- 
terpretation of  this  rule  seems  to  be  that  a  party  must 
prefer  all  of  his  challenges,  of  the  same  nature  and  triable 
by  the  same  forum,  at  once.^  The  challenge  to  the  array 
or  to  the  i)anel  always  precedes  a  challenge  to  the  polls. 
These  challenges  are  taken  separately.  When  the  latter  is 
made,  the  former  is  regarded  as  waived.^  There  would 
seem  to  be  the  same  reason  th;it  a  challenge  for  i)riiicipal 
cause  should  precede  a  challenge  to  the  favor,  and  such  was 
the  practice  for  a  considerable  length  of  time  in  New  York 
before  the  matter  Avas  finally  so  determined  ;*  which  was  in 
the  case  of  Carnal  v.  People,^  where  the  court  conclusively 
show  that  this  practice  is  perfectly  consistent  with  a  correct 
interpretation  of  the  rule.  "  Different  questions,"  said 
King,  J.,  "arise  under  the  two  challenges;  if  principal 
cause  is  shown,  the  juror  must  be  set  aside,  and  if  allowed 
to  serve,  it  would  be  error  which  would  appear  upon  the 
record,  and,  even  before  the  introduction  of  bills  of  excep- 
tions in  criminal  cases,  would  have  furnished  grounds  for 
reversing  the  judgment ;  but  the  challenge  to  the  favor  is 
to  be  determined  by  the  conscience  and  discretion  of  the 
triors  alone,  and  from  their  finding  there  is  no  appeal."^' 

too  late.  The  point,  however,  that  the  swearing  had  begun  was  not  raised. 

1  Co.  Litt.  158.  a.;  Bac.  Abr.  Juries  E.  11;  Trials  per  Pais  (172")), 
p.  149;  1  Chitty  Or.  L.  545. 

»  Mann  v.  Glover,  14  I^.  J.  L.  195,  202;  Carnal  v.  People,  1  Park.  Cr. 
R.  272. 

sCooley  v.  State,  38  Tex.  63G,  G38;  People  v.  Roberts.  6  Cal.  214; 
People  v.  McKay,  18  Johns.  218;  Gropp  v.  People,  67  111.  154;  St. 
Louis,  etc.  R.  Co.  v.  Casner,  72  111.  384;  Mueller  v.  Rebhan,  94  111.  142; 
United  States  v.  Loughery,  13  Blatch.  267;  State  v.  Bryan,  40  Iowa,  379; 
State  v.  Davis,  41  Iowa,  311;  State  v.  Davis,  14  Nev.  439,  448.  A  chal- 
lenge to  the  polls  can  not  be  taken  upon  grounds  which  would  have 
supported  a  challenge  to  the  array.     Co.  Litt.  157.  b. 

■•  People  V.  Freeman,  4  Den.  9;  People  v.  Uoneyinan,  3  Den.  121 ;  Peo- 
ple V.  Mather,  4  Wend.  229. 

«  1  Park.  Cr.  R.  272. 

« Ibid.,  277.  See  upon  this  point.  Stout  v.  People,  4  Park.  Cr.  R.  71; 
Cancenii  v.  People.  16  N.  Y.  r)01. 


§  266.]  ORDER  OF  CHALLENGES.  285 

The  testimony  upon  the  challenge  to  the  favor  (cannot  he 
considered  hy  an  appellate  court  upon  the  question  whether 
the  challenire  for  principal  cause  was  properly  decided,  for 
the  obvious  reason  that  the  latter  challenge  has  to  be  de- 
cided upon  the  evidence  taken  l)y  the  court  u[)on  that  chal- 
lenge only.^  But,  where,  as  is  now  the  uniform  practice, 
the  court  is  the  trior  of  the  challenge  for  principal  cause, 
and  also  of  the  challenge  for  favor,  and  the  latter  imme- 
diately succeeds  the  other,  there  would  seem  to  be  no 
reason  why,  on  the  determination  of  the  latter  challenge,  it 
should  not  consider  all  that  has  been  said  by  tlie  person 
proposed  as  a  juror,  on  his  examination  on  both  challenges  ; 
nor  why  an  appellate  court,  with  power  to  review  the 
holding  on  the  latter  challenge,  should  not  have  the  power 
iilso  to  consider  all  that  the  proposed  juror  had  stated  on 
examination  on  either  challenge.^ 

(2.)  Peremptory  ChaUenges. —  A  party  is  not  ordinarily 
compelled  to  make  his  peremptory  challenges  before  taking 
his  challenges  for  cause.  The  mere  circumstance  that  a 
juror  has  been  challenged  for  cause  may  excite  a  feeling  of 
resentment  in  the  mind  of  the  juror  against  the  chal- 
lenging party.  The  examination  of  the  juror  in  such  a 
•case  may  have  developed  sufficient  to  satisfy  the  chal- 
lenging party  that  he  is  not  impartial,  although  the  triors 
•of  the  challenge  may  have  found  otherwise.  It  is,  there- 
fore, a  matter  of  last  importance  that  the  challenging  party 
should  have  peremptory  challenges  in  reserve  for  the  pur- 
pose of  excluding  such  persons  from  the  jury.  That  per- 
emptory challenges  may  be  thus  held  in  reserve,  is  the 
■opinion  of  the  best  authorities,^  and  is  shown  by  decided 
cases. ^     The   court,   in   Hooker  v.   State,^  after  rehearsing 

'  Cancemi  v.  People,  16  N.  Y.  501,  505. 

2  Greenfield  v.  People,  74  IST.  Y.  277. 

3  4  Bl.  Com.  353;  1  Chit.  Cr.L.  545;  Co.  Litt.  158.  a. 

*  Reg.  V.  Hughes,  2  Craw.  &  Dix  Irish  Cir.  396;  Whelan  v.  Reg.,  28 
Up.  Can.  Q.  B.  2;  Hooker  v.  State,  4  Ohio,  348;  State  v.  Fuller,  39  Vt. 
74;  Barher  v.  State.  13  Fla.  675;  .s.  c,  1  Green  Cr.  L.  Rep.  723;  Cooley 
V.  State,  38  Tex.  638 ;  United  States  v.  Butler,  1  Hughes,  457.] 

*  4  Ohio,  348,  350. 


286  impan?:lling  tiik  .ilkv.  [cii.  xiii. 

the  reasons  assiirncd  l>y  Blackstonk  '  for  the  existence  of 
the  ehalleiiire,  expressly  stated  that  "  the  hiw  has  wisely 
provided  that  the  right  of  the  peremptory  challenge  ought 
to  be  held  open  for  the  latest  possible  period,  to  wit,  u])  to 
the  actual  swearing  of  the  jury."  "^ 

This  is  easily  shown  to  have  been  the  practice  in  the 
State  Trials,^  notwithstanding  the  })osilive  statement  of  the 
Attorney-General  to  the  contrary  in  one  of  the  latest  of 
these.*  "  r  Mi)prehend,"  said  he,  "  the  I'ight  of  peremptory 
challenge  must  be  exercised  first.  *  *  *  j  p^^-  j^  ^^y 
your  lordships  that  that  whi(;h  I  state  most  positively  has 
never  been  questioned  ;  and,  on  reading  the  State  Trials,  you 
will  find  that  that  which  appears  to  have  been  always  the 
practice  is  also  founded  on  the  principle  that  the  absolute 
peremptory  challenges  must  be  made  first,  to  leave  those 
remaining  upon  the  panel,  about  whose  ca])acity  to  serve 
(when  I  say  capacity  to  serve,  1  mean  in  consequence  of  any 
objection)  questions  may  arise,  to  be  made  out  by  evidence 
on  the  part  either  of  the  prisoner  or  of  the  crown." 

The  practice  contended  for  in  the  remarks  just  noticed  is, 
however,  not  without  the  sanction  of  princi[)le  and  later 
authority.  We  have  hitherto  seen  that  the  right  of  per- 
emptory challenge  is  a  right  only  to  reject,  and  can  never 
be  so  exercised  as  to  confer  a  right  to  select.*  Acting  upon 
this  principle,  it  has  been  held  })roper  for  the  trial  court  to 
compel  both  jiarties  in  a  capital  case  to  make  at  the  same 
time,  once  and  for  all,  the  number  of  peremptory  challenges 

^  4  Bl.  Com.  303. 

*  But  the  right  of  challen});e  luaj'  be  .so  regulated  by  au  act  of  the  h-g- 
islature  that,  after  jurors  liave  been  challenged  and  others  drawn  in 
their  stead,  neither  party  can  challenge  the  jurors  so  drawn  except  for 
cause.  State  v.  Kleinbaek,  2  Speers,  L.  418 ;  Durant  v.  Ashinore,  2  Rich. 
L.  184;  State  v.  Cardoza,  11  So.  Car.  195;  State  v.  Smalls,  11  So.  Car. 
262. 

3  SeeParkyn's  Case,  13  How.  St.  Tr.  75;  Cook's  Case,  13  How.  St.  Tr. 
313;  Layer's  Case,  16  How.  St.  Tr.  137;  Barbot's  Case,  18  How.  St.  Tr. 
1233:  O'Coigly's  Case,  26  How.  St.  Tr.  1227;  Jackson's  Case,  25  How. 
St.  Tr.  804;  Rex  v.  Stone,  6  Term  Rep.  527. 

*  Brandreth's  Case,  32  How.  St.  Tr.  773.  (Tried  in  1817.) 
^  United  States  v.  Marchant,  4  Mason,  160.     Ante,  §  159. 


§  267.]      STATUTORY  FORMS  TO  BE  OBSERVED.  287 

allowed  Lo  each  by  law,  each  being  ignorant  of  the  chal- 
lenges made  by  the  other. ^  This  is  in  conformity  with  the 
rule  as  established  by  judicial  decisions  in  Massachusetts, 
that  the  right  of  peremptory  challenge,  if  exercised  at  all, 
must  be  exercised  in  the  first  instance,  before  the  juror  is 
interrogated  as  to  his  bias  or  opinions.^ 

§  267.  Statutory  Forms  of  Impanelliug  to  be  ob- 
served.—  The  statutes  of  many  or  the  States  provide  for 
the  selection  of  each  jury  by  lot  from  the  whole  number 
summoned.  The  names  of  the  jurors  returned  are  written 
upon  slips  of  paper,  which,  after  being  folded,  are  placed  in 
a  box.  When  each  cause  is  called,  the  twelve  whose  names 
are  first  drawn  from  the  box,  if  present,  and  not  challenged 
or  excused,  are  sworn. ^  The  statutory  form  of  impanelling 
must  be  followed,*  although  a  slight  and  immaterial  de- 
parture will  be  tolerated.^  Under  a  statute  providing  that,- 
if  any  person  whose  name  shall  be  drawn  shall  not  appear, 
etc.,  then  such  further  number  shall  be  drawn  as  shall  ])e 
necessary  to  complete  the  panel,  a  juror,  not  answering  to 
his  name  when  drawn,  mtiy  he  refused  a  place  upon  the 
panel,  although  he  appears  and  answers  before  the  drawing 
is  completed.^     And  if,  in  compliance  with  the  statute,  the 

1  State  V.  Hays,  23  Mo.  287.  The  rule  in  this  State  is  now  altered  by 
statute.  The  prosecution  is  required  to  announce  its  challenges  before 
the  defendant  can  be  compelled  to  make  his.  State  v.  Steeley,  (55  Mo. 
218;  State  v.  Degonia,  69  Mo.  485,  construing  Wag.  Stat.  p.  800,  §  21,  and 
ibid.,  p.  1103,  §  16.  Calling  over  the  names  of  those  remaining  unchal- 
lenged has  been  held  to  give  the  accused  sufficient  information  as  to 
whom  the  prosecution  has  challenged.    Phillips  v.  State.  6  Tex.  App.  44. 

2  Com.  V.  Rogers,  7  Met.  500;  Com.  v.  Webster,  5  Cush.  295,  (overrul- 
ing upon  this  point  Com.  v.  Knapp,  9  Pick.  496) ;  Com.  v.  McElhaney, 
111  Mass.  439.  However,  it  is  now  provided  by  statute  in  Massachusetts 
that  '>  the  right  to  challenge  peremptorily  any  person  called  or  returned 
to  serve  as  a  juror,  may  be  exercised  after  it  has  been  determined  that 
the  person  so  called  or  returned  stands  indifferent."  Laws  Mass.  1873, 
c.  317,  §  1. 

8  A  prisoner  standing  mute  is  nevertheless  entitled   to  his  challenges 
and  to  a  jury  impanelled  in  due  form.     Link  v.  State,  3  Heisk.  252. 
<  Brazier  v.  State,  44  Ala.  387. 
«  People  V.  Rogers,  13  Abb.  Pr.  (N.  S.)  370. 
«  People  V.  Vermilyea,  7  Cow.  369. 


288  IMI'ANKLLINd  TlIK  .lUUY.  [CH.    XIII. 

name  of  such  juror  i.s  returned  to  tlu;  box,  neitlier  party 
can  demand  that  he  sliall  take  his  phicc  upon  the  jury.' 

§  2(iS.  How  in  the  Absence  of  sucli  Provisions. — 
Where  the  statutes  are  silent  as  to  the  mode  of  impanelling 
the  jury,  after  tiie  jurors  are  returned  into  court,  all  subse- 
quent [)roceedings  in  relation  to  the  formation  of  a  jury 
iire  left  to  the  discretion  of  the  court.''  In  such  a  case, 
although  the  general  practice  may  have  been  to  arrange  the 
jurors  who  are  present  into  two  juries.,  to  try  the  causes 
alternately  in  their  order,  this  is  sim[)ly  a  rule  prescribed  as 
one  convenient  for  the  transaction  of  the  business  of  the 
court.  The  judge  may,  therefore,  in  a  particular  case,  dis- 
[)ense  with  it,  or  discard  it  entirely  at  his  pleasure.  Neither 
party  can  demand  as  a  right  that  his  case  shall  be  tried  by 
the  jury  before  whom  it  would  come  in  regular  course. 
The  court  may,  in  its  discretion,  when  the  case  comes  on 
for  trial,  break  up  and  rearrange  the  panels.^  It  is  no  ob- 
jection that  the  names  of  the  jurors  were  not  called  in  the 
order  in  which  they  stood  upon  the  venire,  where  the 
statute  requires  the  whole  array  to  be  organized  into  two 
juries  and  supernumeraries,  and  the  constant  practice  is  to 
impanel  the  jurors  for  the  trial  of  a  case,  in  the  order  in 
which  they  were  drawn  upon  such  juries.'* 

Unless  a  statute  requires  the  selection  of  jurors  by  lot 
for  the  trial  of  a  particular  case,  a  party  cannot  demand 
that  the  impanelling  shall  be  fortuitous.''  A  fortiori,  if, 
under  such  circumstances,  the  clerk  chooses  to  adopt  a 
fortuitous  method  of  selection,  a  party  cannot  object  that  a 
more  fortuitous  method  might  have  been  adopted.^ 

§  269.  Illustrations. —  (1.)  Each  Juror  separoAely  im- 
panelled.—  This   was    the    practice   at  common  law.     The 

'  People  V.  Larned,  7  N.  Y.  445. 

2  Walker  v.  Kennison,  34  N.  H.  257. 

»  Watson  V.  Walker,  33  N.  H.  131,  144;  Ware  v.  Ware,  8  Me.  42; 
Diirant  v.  Ashmore,  2  Rich.  L.  184. 

<  State  V.  Sims,  2  Bailey  (S.  C.)  29;  State  v.  Crank,  2  Bailey  (S.  C.) 
fiO;  Kleinback  v.  State,  2  Speers,  L.  418;  State  v.  Brown,  3  Strob.  L.  508. 

6  Territory  v.  Doty,  1  Pinney,  396;  State  v.  Green,  20  Iowa,  424. 

^  Benaway  v.  Conyne,  3  Chand.  214. 


§   269.]  ILLUSTRATIONS.  289 

juror  was  presented  to  the  prisoner,  or  his  counsel,  that  they 
might  have  a  view  of  his  person ;  then  the  officer  of  the 
court  looked  first  to  the  counsel  for  the  prisoner,  to  know 
whether  they  wished  to  challenge  him  ;  he  then  turned  to 
the  counsel  for  the  Crown,  to  know  whether  they  challenged 
him  ;  and  if  neither  of  them  made  any  objection,  the  oath 
was  administered.'  This  was  held  to  be  the  proper  practice 
under  a  statute  of  Texas  providing  that,  "  In  forming  the 
jury,  the  names  of  the  persons  summoned  shall  be  called 
in  the  order  they  stand  upon  the  list,  and,  if  present,  shall 
be  tried  as  to  their  qualifications,  and,  unless  challenged, 
shall  be  impanelled."^  "By  this  we  understand,"  said 
Roberts,  C.  J.,  "  that  they  are  to  be  challenged,  citlier  for 
cause  or  peremptorily,  severally,  as  each  one  is  determined 
by  the  court  to  be  a  qualified  juror  ;  which  is  to  be  contin- 
ued, one  by  one,  until  the  jury  is  fully  formed,  to  the  num- 
ber of  twelve."^  The  same  practice  prevails  in  other 
States." 

(2.)  Objections  to  this  Practice. —  This  method  of  im- 
panelling certainly  has  the  merit  of  simplicity,  and  it 
is  not  clear  that  the  plan  involves  injustice  to  either 
party.  However,  objections  against  it  have  had  weight 
with  some  courts.  We  find  this  practice  disapproved 
by  the  Supreme  Court  of  Wisconsin.^  The  principal 
objection   was   that   the    defendant   was    hampered   in  the 

1  Brandreth's  Case,  32  How.  St.  Tr.  755,  771 ;  Layer's  Case,  16  How. 
St.  Tr.  135.  ^:dJ 

2  Tex.  Code  Cr.  Proc.  §  556;  Pasch.  Dig.,  §  3024. 

3  Horbach  v.  State,  43  Tex.  242,  260,  overruling  Cooley  v.  State, 
38  Tex.  633,  639.  Tlie  case  of  Horbach  v.  State,  supra,  is  regarded  as 
settling  the  practice  in  Texas.  Mitchell  v.  State,  43  Tex.  512;  Wasson 
V.  State,  3  Tex.  App.  474;  Taylor  v.  State,  3  Tex.  App.  169,  199;  Baker 
V.  State,  3  Tex.  App.  525;  Hardin  v.  State,  4  Tex.  App.  355;  Drake  v. 
State,  5  Tex.  App.  649;  Ray  v.  State,  4  Tex.  App.  450;  Garza  v.  State,. 
3  Tex.  App.  286.  See  in  this  connection  Speiden  v.  State,  3  Tex.  App. 
156;  West  v.  State,  7  Tex.  App.  150;  State  v.  Ivey,  41  Tex.  35;  Griffin  v. 
Stadler,  3S  Tex.  695. 

<  Smith   V.  Brown,  8    Kan.    608;   State   v.  Roderigas,   7  Ner.   328;. 
Schnfflin  v.  State,  20  Ohio  St.  233;  State  v.  Brown,  12  Minn.  538. 
«  Lamb  v.  State,  36  Wis.  424. 

(19) 


290  IMPANELLING  THE  JURY.  [CH.  IIII. 

exercise  of  his  right  of  challenging  the  jurors  peremp- 
torily. "The  mode  adopted,"  said  Ryan,  C.  J.,  gave  no 
op[)ortunity  for  comparison  and  choice  between  jurors,  and 
little  opportunity  for  observance  of  each  juror,  ap})arently 
essential  to  the  exercise  of  a  right  so  visionary  and  fanci- 
ful." ^  The  proper  practice  was  stated  to  be  as  follows: 
*'  The  clerk  calls  jurors  in  the  case,  until  twelve  are  in  the 
1)()X.  The  parties,  if  they  so  choose,  question  any  of  the 
jurors  so  called,  and  challenge  for  principal  cause  or  ff)r 
favor.  If  such  challenges  are  allowed,  the  clerk  at  once 
calls  another  juror  in  place  of  each  so  challenged,  so  that 
twelve  are  always  in  the  box  unchallenged.  Challenges  for 
[)rincipal  cause  or  for  favor  having  been  exhausted  or 
waived,  leaving  twelve  in  the  box  unchallenged,  the  parties, 
if  they  so  choose,  exercise  the  right  of  peremptory  chal- 
lenge, the  place  of  each  so  challenged  being  at  once  filled, 
so  that  no  challenge  is  made  without  the  full  number  sub- 
ject to  challenge  being  in  the  box.  No  juror  is  sworn  in  the 
cause  until  the  right  of  challenge  is  exhausted  or  the  jury 
is  accepted."  - 

(3).  ImpaneUinrj  by  Fours. —  A  statute  pj'ovided  that, 
upon  the  impanelling  of  a  jury  in  a  civil  action,  it  should 
be  the  duty  of  the  court,  upon  the  request  of  either  party 
to  the  suit,  to  order  twelve  jurors  into  the  l)ox  before  either 
party  should  be  required  to  pass  upon  the  jurors,  who  weic 
to  be  passed_[upon  and  accepted  in  panels  of  four,  com- 
mencing with  the  plaintiff.  This  was  held  to  require  that 
the  full  number  of  twelve  should  be  always  in  the  box. 
Any  diminution  caused  by  challenges  should  be  at  once  re- 
filled. The  process  of  impanelling  was  stated  to  be  as 
follows:  "When  one  is  challenged,  either  for  cause  oi* 
[)cremptorily,  before  proceeding  further,  another  must  be 
called  into  the  box  ;  and  then,  from  those  in  the  box,  an- 
other must  be  added  to  the  panel  of  four  being  passed 
on.     When  the  panel  of  four  is  accepted  by  both  parties, 

1  This  overlooks  the  well  settled  principle  that  the  right  in  question  is 
VI  right  to  reject,  and  not  a  right  to  seleit.     Antp^  §  150. 

2  36  Wis.  427. 


§   269.]  ILLUSTRATIONS.  291 

they  become  a  part  of  the  jury,  and  a  panel  of  four  more 
is  called  up,  and  the  same  proces  is  repeated."  ^  Although 
the  practice  has  been  to  call  a  certain  number  of  jurors  at 
a  time,  for  the  purpose  of  putting  them  upon  the  parties, 
the  court  may  call  a  greater  or  less  number,  and  require  the 
parties  to  pass  upon  them.'' 

(4.)  Order  of  Challenging  between  Parties. —  In  the 
n])sence  of  a  statute  regulating  the  order  of  challenging, 
this  matter  seems  to  be  relegated  to  the  discretion  of  the 
€ourt,  which  will  not  be  review^ed,^  at  least  in  the  absence 
of  evidence  that  the  court  abused  its  discretion  to  the  in- 
jury of  the  party  complaining.*  Thus,  in  making  up  the 
jury  for  the  trial  of  a  criminal  case,  twelve  jurors  being  in 
the  box,  the  district  attorney  challenged  a  juror  peremp- 
torily, and  then  the  defendant  one.  When  the  panel  was 
refilled,  the  defendant's  counsel  insisted  that  the  State 
should  exercise  a  second  peremptory  challenge,  if  any 
more  w^as  to  be  made.  The  defendant,  however,  was  re- 
quired to  challenge  a  second  time  before  the  State  again 
exercised  the  right,  and  the  court  ruled  that,  upon  a 
failure  to  do  so,  the  defendant  would  waive  the  privilege  as 
to  one  juror.  This  was  held  to  have  been  a  proper  exercise 
of  discretion.^ 

1  Sterling  Bridge  Co.  v.  Pearl,  80  111.  251,  254. 

2  Walker  v.  Collier,  37  111.  362;  Sellers  v.  State,  52  Ala.  368. 

3  Com.  V.  Piper,  120  Mass.  185;  Tatura  v.  Preston,  53  Miss.  654;  State 
V.  Pike,  49  X.  H.  406;  Ossipe  Man.  Co.  v.  Canney,  54  N.  H.  295;  St.  An- 
thony Falls  W.  P.  Co.  V.  Eastman,  20  Minn.  277;  Turpin  v.  State 
(Sup.  Ct.  Md.,  Oct.  1880),  2  Crim.  L.  Mag.  532. 

<  State  V.  Ivey,  41  Tex.  38;  Dixon  v.  State,  2  Tex.  App.  530;  Ray  v. 
State,  4  Tex.  App.  450;  State  v.  Cummings,  5  La.  An.  330;  State  v. 
Florez,  5  La.  An.  429;  State  v.  Shelledy,  8  Iowa,  480;  State  v.  Pierce,  8 
Iowa,  231;  State  v.  Boatwright,  10  Rich.  L.  407;  Schufflin  v.  State,  20 
Ohio  St.  233;  State  v.  Dumphey,  4  Minn.  438;  Driskell  v.  Parish,  10 
Law  Reporter,  395;  Jones  v.  State,  2  Blackf.  475,  478;  Williams  v. 
State,  3  Ga.  453,  4.59;  Beauchamp  v.  State,  6  Blackf.  299.  However,  it 
has  been  considered  that  a  departure  from  a  well  established  practice 
might  afford  good  cause  for  granting  a  new  trial.  State  v.  Florez,  5  La. 
An.  429. 

5  State  V.  Pierce,  8  Iowa,  231.  See  also  Dixon  v.  State,  2  Tex.  App. 
529 ;  State  v.  Ivey,  41  Tex.  35. 


292  IMl^ANELLING  THE  JURY.  [CH.  XIII. 

It  is  no  abuse  of  discretion  for  the  trial  judge  to  compel 
either  party,  upon  the  full  panel  of  twelve  being  jjresented 
to  him,  to  strike  off  then,  once  and  for  all,  every  juror  to 
whom  he  has  objection,  granting  him  only  the  opportunity 
of  objecting  to  new  jurors  introduced  to  supply  the  places 
of  those  challenged  off  hy  himself  or  his  adversary.^  On 
the  other  hand,  it  is  within  the  discretion  of  the  court  to 
allow  members  of  the  panel  to  be  challenged  off  by  a  party 
after  he  has  once  passed  them.-^ 

(5.)  Continued —  CJiallenging  alternately. —  The  parties 
may  be  required  by  the  court  to  take  their  peremptory 
challenees  one  at  a  time  alternate! v. ^  In  such  a  case  a 
failure  to  challenge  in  turn  has  been  regarded  as  a  waiver 
of  a  challenge  at  such  time,  and  the  challenge  not  taken 
was  deducted  from  the  number  allowed  by  law.*  How- 
ever, the  court  cannot,  by  any  rule  as  to  the  order  of 
challenging,  deprive  a  party  of  his  right  to  make  the  num- 
ber of  peremptory  challenges  guaranteed  to  him  by  law. 
Thus,  it  is  erroneous  for  the  court,  having  arranged  the 
order  of  challenging  so  that  the  State  should  challenge  one, 
to  be  followed  b}^  a  challenge  of  two  by  the  defendant,  to 
make  the  defendant's  right  of  challenge  contingent  upon 
the  State  challenging  in  the  first  instance.*  Where  the  par- 
ties challenge  jurors  alternately,  the  w^aiver  of  the  first 
challenge  is  not  to  be  construed  as  a  waiver  of  subsequent 
challenges.^ 

Under  a  statute  requiring  that  "  the  State  shall  first  ex- 
haust its  peremptory  challenges  or  waive  the  same,  and  the 

1  Tatum  V.  Preston.  53  Miss.  654;  Hotz  v.  Hotz,  2  Ash.  (Penu.)  245. 

2  Fountain  v.  West,  23  Iowa,  10;  Com.  v.  Piper,  120  Mass.  185; 
Ilubotter  v.  State,  32  Tex.  479;  Williams  v.  State,  3  Ga.  453,  459. 

3  Driskell  v.  Parish,  10  Law  Keporter,  395. 

^Patton  V.  Ash,  7  Serg.  &  R.  116;  Com.  v.  Frazier,  2  Brewst.  490; 
Wenrick  v.  Hall,  11  Serg.  &  R.  153;  Fountain  v.  West,  23  Iowa,  9.  But 
see  Schumacker  v.  State,  5  Wis.  324;  Hartzell  v.  Com.,  40  Pa.  St. 
462;  Kleinback  v.  State,  2  Speers,  418;  Koch  v.  State,  52  Ohio  St.  352; 
State  V.  Pritchard,  15  Nev.  74. 

5  Smith  V.  State,  4  G.  Greene,  189.  See  also  State  v.  Pritchard,  15 
Nev.  74. 

6  Kennedy  v.  Dale,  4  Watts  &  S.  176;  Fountain  v.  West,  23  Iowa,  9. 


269.]  ILLUSTRATIONS. 


293 


-defendant  afterwards,"  ^  the  court  cannot  arrange  an  alter- 
nate order  of  challenging.  It  is  the  challenges  (not  a 
challenge)  that  are  to  be  exhausted.  And  these  are  to  be 
Jii'st  exhausted.  It  is  only  after  the  State  has  thus  ex- 
hausted or  waived  its  right,  that  the  defendant  can  be 
called  upon  or  permitted  to  exercise  his  privilege  of  chal- 
lenging.'^ On  the  other  hand,  where  the  statute  prescribed 
that  "  all  challenges  to  an  individual  juror  shall  be  taken 
first  by  the  defendant,  and  then  by  the  State,  and  each 
party  shall  exhaust  all  his  challenges  before  the  other 
begins,"^  it  was  held  erroneous  to  compel  the  defendant 
to  exhaust  all  of  his  challenges  to  each  and  all  of  the  per- 
sons upon  the  panel  before  the  State  began.  The  proper 
proceeding  was  stated  to  be,  for  the  defendant  to  exhaust 
all  of  his  challenges  to  a  single  juror,  who  was  then  turned 
over  to  the  State,  if  remaining  upon  the  panel.  The  State 
having  exhausted  its  challenges  upon  this  juror,  the  defend- 
ant began  again  upon  another,  and  the  parties  went  on  in 
this  manner  until  a  jury  was  procured.* 

(6.)  JSTo  Bight  of  Peremptory/  Challenge  after  Accept- 
ance.—  A  question  frequently  arises  in  practice  in  this  coun- 
try, which  grows  out  of  the  fact  that  the  ordinary  mode 
of  impanelling  the  jury  with  us  differs  in  an  essential 
particular  from  that  which  has  always  prevailed  in  England. 
Under  the  latter  practice,  as  we  have  seen,^  each  juror  is 
examined  separately,  and  presented  to  the  parties  for 
their  acceptance  or  rejection.  If  accepted,  he  is  at  once 
sworn,  after  which  formality  it  is  clear  no  challenges  can 
be  made  by  either  party  to  this  juror.  Hence  the  general 
rule,  that  challenges  may  be  made  at  any  time  up  to  the 
sv/earing  of  the  jury.^  With  us,  the  practice  of  swearing 
the  jury  is  generally  deferred  until  a  full  panel   has  been 


1  Rev.  Iowa,  1860,  §  4780. 
-  State  V.  Bowers,  17  Iowa,  46. 
^G.  S.Minn.,  ch.  106.  §  32. 
*  State  V.  Smith,  20  Minn.  376. 
■>  Ante,  §  269,  subsec.  1. 
«  Ante,  §  265. 


294  IMPANELLING  THE  JUUY.  [CH.  XIII. 

l)rocured.  The  jurors,  as  lliey  aro  accepted,  arc  directed  to 
their  places  in  the  box.  It  frequently  happens  that  consid- 
erable time  is  consumed  in  tlie  process  of  impanelling, 
during  which  a  party  is  likely  to  discover  some  cause  of 
challenge  to  exist  against  a  juror  who  has  been  accepted 
but  remains  unsworn  ;  or,  uj^on  further  inspection  of  the 
juror,  as  he  sits  in  the  box,  he  may  desire  to  chaUenge  him 
peremptorily,  having  grounds  for  suspecting  him  of  par- 
tiality for  his  adversary.  The  question  now  arises,  can  this 
be  done  after  the  juror  has  been  accepted?  Is  not  such 
acceptance  a  positive  bar  to  all  further  objection  to  the 
juror,  as  a  matter  of  right? 

A  leading  case  upon  this  point  is  The  >State  v.  Potter} 
A  tialesman  was  called,  examined  and  found  to  be  subject 
to  no  cause  of  challenge  ;  the  counsel  for  the  defendant 
were  directed  to  make  their  peremptor}^  challenge  at  this 
time,  if  at  all.  They  declined  to  exercise  this  right  as  the 
panel  was  not  full,  and  the  juror  took  his  place  in  the  box. 
When  the  panel  was  full,  and  before  the  jury  were  sworn, 
the  counsel  for  the  prisoner  claimed  the  right  to  challenge 
this  juror  peremptorily.  The  judge,  considering  this  right 
to  have  l)cen  waived,  refused  to  aUow  the  challenge,  and 
this  ruling  Avas  sustained  by  the  Supreme  Court.  Wil- 
LIA3IS,  C.  J.,  said  upon  this  point:  "  When  one  has  been 
examined  and  opportunity  to  challenge  given,  he  is  directed 
to  take  his  seat  as  a  juror,  just  as  in  England,  after  he  has 
been  sworn  :  and  the  dela}'  in  swearing  him,  is  not  to  give 
any  privilege  to  the  prisoner,  which  he  could  not  claim  else- 
w^here,  but  to  prevent  multiplying  oaths,  and  to  save  the 
delay  incident  to  the  administration  of  the  oath  twelve 
times,  instead  of  once.  The  prisoner  now  claims,  as  mat- 
ter of  right  to  himself,  a  privilege  which  he  could  have  no 
pretence  to  claim  after  the  person  challenged  had  been  de- 
clared a  juroi'  by  the  English  practice;  —  and  if  the  prin- 
ciple claimed  here,  by  the  prisoner,  is  correct,  that  he  must 
lie  allowed  this  privilege  to  the  last  moment  before  the  trial 

1  18  Conn.  160. 


§   269.]  ILLUSTRATIONS.  295 

commences,  the  practice  is  wrong  then,  which  deprives  him 
of  this  privilege,  by  swearing  each  juror  before  he  has  had 
full  opportunity  to  make  his  challenge.  The  effect  of  the 
practice  in  both  cases  is  the  same.  In  the  one  case,  his 
opportunity  is  closed  when  the  juror  is  sworn  ;  in  the  other 
case,  when  he  is  directed  to  take  his  seat."  ^  Other  courts 
also  take  this  view.'^ 

The  rule  here  adopted  was  in  some  degree  qualified  by 
the  Supreme  Court  of  Iowa  in  an  early  case.^  Here  a  jury 
were  impanelled  but  not  sworn,  and  allowed  to  separate  for 
the  night.  In  the  morning,  the  plaintiff  peremptorily  chal- 
lenged one  of  the  jurors,  which  challenge  was  disallowed. 
This  was  held  to  be  such  an  error  as  called  for  the  reversal 
of  the  judgment.  The  court  conceded  that,  after  a  party 
has  once  accepted  a  jury,  and  there  is  no  separation  of  the 
jury  or  intermission  of  the  court  between  the  acceptance 
and  the  swearing  of  the  jury,  the  party  then  objccting^ 
should  advance  some  substantial  reason  for  failing  to  avail 
himself  of  his  peremptory  challenges  at  the  proper  time  ; 
"but,"  said  Kinney,  J.,  "if  the  jur}^  become  separated 
after  they  are  impanelled  and  accepted,  and  thrown  into 
positions  where  they  are  liable  to  become  impressed  with 
the  feelings  and  sentiments  of  desio-nino;  men,  we  think 
counsel   have  a  right  to  an  unrestrained   exercise  of  their 

1  Ibid.,  p.  176. 

2  Horbach  v.  State,  43  Tex.  242  (overruling  on  this  point  Cooley  v. 
State,  38  Tex.  G36;  Hubotter  v.  State,  32  Tex.  479);  Com.  v.  Marrow, 
3  Brewst.  402,  412;  Sparks  v.  State,  59  Ala.  82;  State  v.  Cameron, 
2  Chand.  (Wis.)  172;  Com.  v.  Rogers,  7  Mete.  500;  State  v.  Hays, 
23  Mo.  287;  McMillan  v.  State,  7  Tex.  App.  142;  Smith  v.  Brown,, 
8  Kan.  609;  State  v.  Anderson,  4  Nev.  265;  State  v.  Roderigas,  7  Nev.. 
328;  State  v.  Schufflin,  20  Ohio  St.  233;  Mitchell  v.  State,  43  Tex.  512; 
Wasson  v.  State,  3  Tex.  App.  474;  Taylor  v.  State,  3  Tex.  App.  169; 
Baker  v.  State,  3  Tex.  App.  525;  Drake  v.  State,  5  Tex.  App.  04!). 
Under  this  rule,  however,  there  can  be  no  doubt  that  the  court  may.  in 
its  discretion,  for  good  cause  shown,  remove  a  juror  permanently,  or 
cause  him  to  stand  aside,  after  he  has  been  accepted.  State  v.  Pottei', 
18  Conn.  166 ;  Horbach  v.  State,  43  Tex.  242 ;  Mitchell  v.  State,  43  Tex.  512 ; 
McMillan  v.  State,  7  Tex.  App.  142;  Baker  v.  State,  3  Tex.  App.  525; 
Sparks  v.  State,  59  Ala.  82;  Drake  v.  State,     Tex.  App.  649. 

3  Spencer  v.  DeFrance,  3  G.  Greene,  216. 


296  IMPANELLING  THE  JURY.  [CH.  XIII. 

ohiillenge,  up  to  the  very  moment  that  the  jury  are  required 
to  take  the  oath."  ^ 

(7.)  A  contrary  View. —  Other  authorities  lay  down 
the  contrary  rule,  that  the  right  of  peremptory  challenge, 
notwithstanding  the  difference  in  the  practice  of  impanel- 
ling before  noticed,  should  be  kept  open  for  the  latest  pos- 
sible period,  namely,  u})  to  the  actual  swearing  of  the  jury,' 
and  that  no  circumstances  can  bring  this  right  within  the 
discretion  and  control  of  the  court,  so  long  as  it  is  confined 
to  the  number  of  peremptory  challenges  allowed  by  law.' 
By  these  authorities,  therefore,  the  right  of  a  party  to 
retract  his  acceptance  of  a  juror  at  any  time  before  he  is 
sworn,  and  challenge  him  peremptorily,  is  conceded.* 

Under  one  provision  of  a  statute,  requiring  the  challenge 
in  criminal  cases  to  be  taken  "  when  the  juror  appears,  and 
before  he  is  sworn,"  and  another,  requiring  the  clerk  of 
the  court  to  draw  twelve  names  from  the  box  when  the  case 
is  called,  it  was  held  that  the  trial  court  erred  in  requiring 
the  defendant  to  pass  upon  each  separate  juror  as  his  name 
was  drawn,  who,  if  not  challenged  for  cause  or  perempto- 
rily, was  ordered  to  be  sworn  as  a  trial  juror  before  another 
name  was  drawn.  The  court  stated  the  proper  practice  to 
be  to  draw  twelve  names  from  the  box  ;  to  permit  the  defend- 
ant to  examine  each  separately,  and  exhaust  his  challenges 
for  cause,  before  challenging  any  one  peremptorily.^ 

^  Ibid.,  p.  218.     See  poi^t,  §  332,  subsec.  1. 

2  Hooker  v.  State,  4  Ohio  348,  350:  Bemichamp  v.  State,  6  Blackf. 
2!J9,  30S;  Munly  v.  State,  7  Blackf.  593;  JLorris  v.  State,  7  Blackf.  607; 
Wyatt  V.  Noble,  8  Blackf.  507;  People  v.  Reynolds,  16  Cal.  128;  People 
V.  Ah  You,  47  Cal.  121;  Edelen  v.  Gough,  8  Gill,  87;  Williams  v.  State, 

3  Ga.  453,  459;  Drake  v.  State,  51  Ala.  30,  and  Bell  v.  State,  cited  ibid., 
p.  31;  Kleinback  v.  State,  2  Speers,  418. 

3  Schumacker  v.  State,  5  Wis.  324. 

*  Hendrick  v.  Com.,  5  Leigh,  707;  Jackson  v.  Pittsford,  8  Blackf.  194; 
Hunter  v.  Parsons,  22  Mich.  96;  Jhons  v.  People,  25  Mich.  500;  O'Con- 
nor V.  State,  9  Fla.  215;  State  v.  Pritchard,  15  Nev.  74;  s.  c,  10  Re- 
porter,   273;   Jones   v.  Vanzaudt,  2    McLean,   611;  People    v.  Kohle, 

4  Cal.  199;  People  v.  Jenks,  24  Cal.  11 ;  People  v.  McCarty,  48  Cal.  557; 
Lindsley  v.  People,  6  Park.  Cr.  R.  233;  Drake  v.  State,  51  Ala.  30. 

5  People  V.  Scoggius,  37  Cal.  676;  People  v.  Russell,  46  Cal.  121.  See 
also  Com.  v.  Hartzell,  40  Pa.  St.  462;  Lee  v.  Peter,  6  Gill  &  J.  447. 


§    270.]      LIBERAL  DISCRETION  ALLOWED  THE  COURT.  297 

(8.)  So  in  respect  of  Challenges  for  Cause. —  The  fore- 
jroing  relates  to  the  exercise  of  the  right  of  peremptory 
challenge.  As  to  challenges  for  cause,  it  is  also  held  that 
a  party  may,  for  a  proper  reason,  retract  his  acceptance 
of  a  juror,  and  challenge  in  this  form.^  In  a  late  case,  de- 
cided by  the  Supreme  Court  of  Michigan,  Marston,  J., 
said:  "It  is  the  aim  and  policy  of  the  law  to  have  a  fair 
and  impartial  jury,  and  to  this  end  it  would  be  the  clear 
duty  of  the  court,  up  to  the  last  minute,  to  permit  counsel 
to  further  examine  the  jurors."  "^  But,  as  has  been  ob- 
served, thii?  power  to  challenge  for  cause  at  any  time  before 
the  oath  is  tendered,  might  be  abused.  If  the  objection  to 
a  juror  be  kept  back  at  the  regular  tmie  for  an  improper 
reason,  or  from  motives  of  mere  caprice,  it  would  be  just 
for  the  court  to  declare  the  right  to  be  wholly  waived,  and 
the  discretionary  i)ower  to  do  so  ought  not  to  be  denied.^ 

§  270.  A  liberal  Discretion  allowed  the  Court. —  It  is  a 
settled  rule  of  practice  that  some  prejudice  to  the  appellant, 
resulting  from  the  rulings  of  the  trial  court  in  organizing 
the  jury,  or  at  least  some  infringement  of  statutory  pro- 
visions relating  thereto,  must  be  shown,  before  an  appellate 
court  will  review  the  proceedings  of  the  court  below.*  It  is 
within  the  discretion  of  the  court  to  direct  the  names  of 
twelve  of  the  regular  panel  in  attendance  to  be  omitted  in 
impanelling  a  jury  for  a  given  case  ;  for  example,  where 
such  jurors  are  in  the  jury-room,^  or  have  recently  rendered 
a  verdict  in  another  case.'"'     But  where  jurors  have  been  sum- 

'  McFadden  v.  Coin.,  23  Pa.  St.  12,  17;  Smith  v.  State,  55  Ala.  1 
(overruling  Stalls  v.  State,  28  Ala.  2.'j)  ;  Sparks  v.  State,  59  Ala.  82;  State 
V.  Adair.  6G  X.  C.  298:  State  v.  Perkins,  66  N".  C.  126;  State  v.  Davis,  80 
N.  C.  412. 

2Scripps  V.  Keilly,  38  Mich.  10. 

3  McFadden  v.  Com.,  22  Pa.  St.  12,  17,  per  Black,  C.  J.  See  also  the 
other  authorities  cited  xupra. 

*  Ray  V.  State,  4  Tex.  App.  450;  Gardeuhlre  v.  State,  6  Tex.  App.  147; 
Dixon  V.  State,  2  Tex.  App.  530;  Harkins  v.  State,  6  Tex.  App.  452; 
Walker  v.  Kennison,  34  X.  H.  257;  W^ilson  v.  State,  31  Ala.  371;  Funk- 
houser  v.  Pogne,  13  Ark.  295. 

•^  State  v.  Pitts,  58  Mo.  550;  Kimbrough  v.  State,  62  Ala.  248. 

«  Alexander  v.  Oshkosh,  33  Wi.«.  277. 


298  IMPANELLING  THE  JURY.  [CII.  Xlll. 

moned  upon  a  spcciul  venire  for  the  trial  of  a  capital  ca.se, 
the  court  ought  not  to  take  a  portion  of  them  for  the  trial 
of  another  case.'  A  trial  justice  has  no  right,  of  his  own 
motion,  without  any  exception  being  taken  by  either  party, 
to  quash  the  panel  of  jurors,  and  issue  a  new  venire.^ 

§  27].  Xo  vested  Rij^lit  to  a  i»arti<uljvr  Juror. —  It  is 
sometimes  supposed,  especially  upon  criminal  trials,  that, 
even  before  sw^earing,  a  parly  may  acquire  a  vested  interest 
in  a  juror.  But,  as  obser\  ed  by  Lord  Campbell,  C.  J., 
"  in  truth  and  according  to  law,  there  is  no  necessity  nor 
right  that  a  prisoner  shall  be  tried  by  })articular  jurymen,  till 
the  prisoner  has  been  given  in  charge  to  the  jury.  *  *  * 
AVhen  the  prisoner  has  been  given  in  charge  to  the  jury,  by 
that  jury  he  nmst  be  tried  :  and  in  felony  or  treason,  the 
jury  cannot  separate  till  they  have  found  their  verdict. 
But  (as  often  happens  at  the  assizes),  before  a  particular 
prisoner,  Avho  has  had  his  challenges,  is  given  in  charge  to 
the  jury,  the  court  rises  and  the  jury  separate.  Next  morn- 
ing a  new  jury  is  called,  w^hen  the  prisoner  again  has  his 
challenges  ;  and  possibly  there  may  not  be  one  individual 
uj)on  the  second  jur^^  that  was  sworn  upon  the  first ;  yet  all 
this  is  regular."  ^ 

Where  a  cause  has  been  tried  by  an  impartial  jury, 
although  the  judge,  on  the  application  of  one  of  the  par- 
ties and  against  the  consent  of  the  other,  may  have  re- 
jected a  juror  for  a  cause  of  questionable  sufficiency,  such 
rejection  does  not  afford  a  ground  of  comi)laint,  if  justice 
has  been  done  in  the  premises.''  In  other  Avords,  while  tl'» 
disallowance  of  a  s^ood  cause  of  challenire  will  work  a  re 
versal  of  the  judgment,  an  imi)roper  allowance  of  a  cause 
of  challenge  will  not  necessarily  have  this  effect.  A  qual- 
ified juror  may  be  rejected,  and  still  a  jury  of  lawful   men, 

^  Bates  V.  State,  19  Tex.  12t. 

^  Cross  V.  Moultou,  ].")  Johns.  470. 

*  Mansell  v.  Keg.,  8  El.  &  Bl.  54,  79;  post,  §  332;  subsec.  1. 

*Tatum  V.  Young,  1  Porter  (Ala.)  298;  Bibb  v.  Reid,  3  Ala.  88; 
People  V.  Arceo,  32  Cal.  40;  Grand  Kapids  Booming  Co.  v.  Jarvis,  30 
Micli.  308:  Carpenter  v.  Dame,  10  Ind.  12.");  Ileaston  v.  Cincinnati,  etc. 
R.  Co.,lG  Ind.  27.").  279.     See  also  ante,  §  251. 


§   271.]      NO  VESTED  RIGHT  TO  A  PARTICULAR  JUROR.  29^ 

against  whom  there  is  no  objection,  may  be  obtained.  A 
party  is  entitled  to  a  hiwful  jury  ;  but  he  is  not  under  all 
circumstances,  as  a  matter  of  right,  entitled  to  have  the 
first  juror  called  who  has  all  the  statutory  qualifications.^ 
There  are,  indeed,  authorities  contrary,^  but,  it  is  be- 
lieved, they  are  grounded  upon  an  exaggerated  view  of  the 
rights  of  accused  persons  and  litigant  parties  generally. 
So  far  as  the  formation  of  the  jury  is  concerned,  they  have 
a  constitutional  right  to  demand  that  it  shall  be  "impartial ;" 
l)ut  this  right  is  not  impaired  by  the  exclusion  of  jurors, 
though  never  so  impartial,  so  long  as  impartial  jurors  le- 
inain  and  try  the  case.  And,  it  has  been  pertinently  asked, 
what  advantage  w^ould  accrue  to  a  part}',  should  a  new 
trial  be  awarded  because  of  the  exclusion  of  competent 
jurors  in  his  case?  Obviously,  the  only  effect  of  granting 
the  motion  Avould  be  that  the  prisoner  would  have  to  tai^e 
the  verdict  of  another  impartial  jury.  Upon  the  new  trial 
he  certainly  could  not  demand  that  the  juror  or  jurors  of 
whose  exclusion  he  complains  should  sit  in  the  case.  He 
has  therefore  suffered  no  injury,  nor,  in  the  eye  of  the  law, 
could  he  ])e  possibly  benefited  by  another  trial  .^     This  view 

1  People  V.  Arceo,  32  Ciil.  40,  44;  State  v.  Pritchard,  15  Nev.  74;  State 
V.  Ai-tluir,  2  Dev.  217;  State  v.  Benton,  2  Dev.  &  B.  196,  222;  Smith  v. 
Clayton,  29  N.  J.  L.  357;  Phelps  v.  Hall,  2  Tyler  (Vt.)  401;  John  v. 
State,  16  Fla.  654;  State  v.  Marshall,  8  Ala.  302:  Watson  v.  State,  03 
lud.  548;  Hurley  y.  State,  29  Ark.  17,  22;  State  v.  Lovenstein,  9  La.  An. 
313;  State  v.  Wilson.  48  N.  H.  398;  Foster's  Case,  13  Abb.  Pr.  (N.  S.) 
372,  n. ;  Silvis  V.Ely,  3  Watts  &  S.  420;  Citizens  Bank  v. Strauss,  26  I.a. 
An.  736;  State  v.  Lewis,  28  La.  An.  84;  Clifton  v.  State,  53  Ga.  241; 
Pannell  v.  State,  29  6a.  681;  Henry  v.  State,  4  Huraph.  270;  State  v. 
Shelledy,  8  Iowa,  477;  O'Brien  v.  Vulcan  Iron  Works,  7  Mo.  App.  257. 
See  in  this  connection,  ante,  §  159. 

2  Boles  V.  State,  13  Smed.  &  M.  398;  Williams  v.  State,  32  Miss.  390: 
Smith  V.  State,  55  Miss.  410;  Finn  v.  State,  5  Ind.  400;  Meyers  v.  State, 
20  Ind.  511.  (But  see  Coryell  v.  Stone,  02  Ind.  307.)  Van  Blaricum  v. 
People,  16  111.  364;  Greer  v.  Norvill,  3  Hill  (S.  C.),262.  See  also  re- 
mai'ksof  Lord  Tenterden,  ante,  §  250. 

2  Henry  v.  State,  4  Humph.  270.  This  view  was  strongly  indorsed  in 
a  recent  decision  of  the  Texas  Court  of  Appeals.  "  If  a  defendant  has 
been  tried  by  an  impartial  jury,"  said  Clark,  .J.,  "  the  court  may  have 
committed  a  hundred  errors  in  the  mere  process  of  impanelling  it  with- 
out subjecting  its  action  to  revision  upon  appeal."   Grissom  v.  State,  S 


300  IMPANELLING  THE  JURY.  [CH.    XIII. 

of  the  law  does  not  penuit  a  trial  judge  to  exclude  compe- 
tent jurors  arbitrarily  and  unreasonably  from  participation 
in  the  trial  of  a  cause,  civil  or  criminal.  Whenever  it  shall 
appear  that  the  court  has  thus  abused  its  discretion,  a  new 
trial  will  doubtless  be  granted.^ 

§  272.  A.S  seen  in  the  Ca.se  of  Juror.s  absent  when 
Called. —  In  a  criminal  case,  when  the  name  of  a  juror  is 
drawn  and  called  in  court,  the  accused  cannot  demand  that 
he  shall  be  called  at  the  door  of  the  court-house,  or  that  an 
attachment  shall  issue,  and  an  officer  be  dispatched  for  him.' 
The  rule  is  different  after  the  juror  has  been  sworn.  In 
any  case,  civil  or  criminal,  if  the  juror  absents  himself,  the 
proper  practice  would  s(>em  to  be  to  compel  his  attendance, 
or  dismiss  the  jury  and  ini[)anel  another  to  try  the  cause.' 

§  273.  And  Jurors  set  aside  after  they  have  been  ao- 
<^epted  and  sworn. —  The  court  is  not  bound  to  suffer  the 
case  to  proceed,  after  the  jury  have  been  impanelled,  when 
informed  of  a  fact  going  to  the  disqualification  of  a  juror, 
from  which  it  is  probal)le  that  the  verdict  may  be  set  aside.* 
The    obnoxious    juror    may    be   excluded,'^   and    that,  too, 

Tex.  App.  380,  :>!)S,  citing  State  v.  Raymond,  11  Xev.  98.  See  also 
AVoodard  v.  State,  9  Tex.  App.  412. 

^  People  V.  Areco,  32  Cal.  40;  State  v.  Arthur,  2  Dev.  217;  John  v. 
State,  16  Fla.  554;  Hiues  v.  State,  8  Humph.  597. 

2  United  States  v.  Byrne  (U.  S.  Cir.  Ct.,  S.  D.  N.  Y.,  May,  1881),  7  Fed . 
Jtep.  455;  Waller  v.  State,  40  Ala.  325;  Bill  v.  State,  29  Ala.  34;  Stew- 
nrt  V.  State,  13  Ark.  721,  737;  Hall  v.  State,  51  Ala.  9;  People  v.  Larned. 
7  N.  Y.  415;  People  v.  Vermilyea,  7  Cow.  369,382;  Johnson  v.  State,  47 
Ala.  9;  State  v.  Lovenstcin,  9  La.  An.  313;  Foster's  Case,  13  Abb.  Pr. 
(X.  S.)  372,  n.;  Boles  v.  State,  24Miss.  445;  State  v.  Breaux,  32  La.  An. 
222;  State  v.  Belcher,  13. So.  Car.  4.59.  But  see  .Fohnson  v.  State,  47  Ala. 
9;  State  v.  Ross,  30  La.  An.  1154. 

3  Penncll  v.  Percival,  13  Pa.  St.  197. 

4  Mitchell  V.  State,'43  Tex.  512,  516;  Wormeley"s  Case,  10  Gratt.  C58: 
Muirhead  v.  Evans,  6  Excli.  447.  In  this  last  case,  it  was  discovered, 
(luring  the  examination  of  the  first  witness,  that  there  were  thirteen 
jurors  in  the  box.  It  was  impossible  to  ascertain  which  juror  was  last 
sworn.  Twelve  of  this  jury  were  afterwards  re-sworn,  and  the  trial  of 
the  case  proceeded.  Tliis  practice  was  held  to  be  correct.  See  upon 
this  point  Davis  v.  State,  9  Tex.  App.  634;  Bullard  v.  State,  38  Tex.  504. 

*  State  V.Reeves,  11  La.  An.  685;  Robinson  v.  State,  33  Ark.  ISO; 
State  V.   Vestal,  82  N.   C.  563;  State  v.  Vann,  82  N.  C.   631;  Xolen  v. 


§  273.]   NO  VESTED  RIGHT  TO  A  PARTICULAR  JUROR.      301 

although  he  has  been  sworn,  if  no  evidence  has  been  intro- 
duced. Perhaps  the  earliest  instance  of  the  kind  is  found 
in  Clayton's  Reports,^  Avhere  it  is  recorded  that  "  a  juror 
was  put  by  after  he  was  sworn,  because  of  kin  to  the  plain- 
tiff." ^  The  views  here  stated,  although  occasionally  con- 
troverted,^ are  sustained  by  an  abundance  of  authorities.'* 
However,  it  is  held  that  the  sufficiency  of  the  reasons  for 
this  exclusion  will  be  examined  on  appeal,  and,  unless  sup- 
ported, the  judgment  will  be  reversed.^  The  court  may  also 
discharge  a  juror  from  the  box,  after  he  has  been  sworn, 
where  it  appears  that  the  juror  is  physically  unable  to  sit 
through  the  trial. ^  This  does  not  entitle  a  prisoner  to  his 
discharo;e.  He  should  be  offered  his  challeno;es  over  aa^ain 
to  the  eleven,  and  another  juror  procured  to  fill  the  vacancy." 

State,  2  Head,  520;  Hines  v.  State,  8  Humph.  597;  State  v.  Cummiiigs, 
72  N.  C.  469;  Pannell  v.  State,  29  Ga.  681;  Isaac  v.  State,  2  Head,  458; 
Lewis  V.  State,  3  Head,  127.  The  court  may,  in  its  discretion,  give  the 
prosecutioQ  in  a  criminal  case  the  privilege  to  re-examine  a  juror  after 
liis  acceptance  by  the  State's  attorney,  but  before  his  acceptance  by  the 
defendant.  The  allowance  of  a  challenge  for  cause  shown  upon  the  re- 
examination constitutes  no  error.     Belt  v.  People,  97  111.  461. 

1  Published  in  1651. 

2  Spoford's  Case,  ibid.,  78. 

3  See  State  v.  Williams,  3  Stew.  (Ala.)  454;  Ward  v.  State,  1  Humph. 
253;  Smith  v.  State,  55  Ala.  1,  7;  State  v,  Morea,  2  Ala.  275;  Gearhart 
V.  Jordan,  11  Pa.  St.  325;  State  v.  Stephens,  11  So.  Car.  319;  United 
States  V.  Randall,  2  Cranch  C.  C.412. 

•*  People  V.  Damon,  13  Wend.  351;  Lewis  v.  State,  9  Smed.  &  M.  115; 
McGuire  v.  State,  37  Miss.  369:  Tooel  v.  Com.,  11  Leigh,  714;  Spong  v. 
Lesher,  1  Yeates,326;  Smith  v.  State,  55  Miss.  513;  State  v.  Adair,  66  N. 
C.  298;  Com.  v.  Twombly,  10  Pick.  480,  note;  State  v.  Davis,  80  N.  C. 
412;  Hayues  v.  Crutchfield,  7  Ala.  189.;  Edwards  v.  Farrar,  2  La.  An. 
307;  Tweed's  Case,  13  Abb.  Pr.  (N.  S.)  371,  note;  People  v.  Wilson,  3 
Park.  Cr.  E.  199;  United  States  v.  Morris,  1  Curt.  C.  C.  23;  Gilliam  v. 
Brown,  43  Miss.  641 ;  Williams  v.  State,  32  Miss.  389;  Cornelius  v.  State, 
12  Ark.  782;  Evans  v.  State,  6  Tex.  App.  513;  Stone  v.  People,  3  111.  326; 
Jefferson  v.  State,  52  Miss.  767;  Jackson  v.  State,  51  Ga.  402;  Dilworth 
V.  Com.,  12  Graft.  689,  705;  Watkins  v.  State,  60  Ga.  601. 

5  Black  V.  State,  9  Tex.  App.  328. 

6  Fletcher  v.  State,  6  Humph.  249;  Silsby  v.  Foote,  14  How.  218;  s.  c, 
1  Blatch.  444. 

?  Rex  v.  Edwards,  Russ.  &  Ry.  223;  s.  c,  4  Taunt.  309;  3  Camp.  207. 
Such  is  the  common  law ;  but  this  has  in  some  instances  been  changed 
by  statute.  See  Garner  v.  State,  5  Yerg.  160;  State  v.  Curtis,  5  Humph. 
601;  Snowden  v.  State,  7  Baxter  (Tenn.),  482. 


'^02  I>rPANELLING  THE  JURY.  [CH.  XIII. 

The  withdiawul  of  a  juror,  after  the  trial  has  begun,  in  fact 
operates  as  a  discliarge  of  the  jury  ;  but  the  prisoner  is  not 
entitled  to  complain  of  this,  if  the  eleven  are  at  once  put 
ui)on  him  again  for  acceptance  or  rejection.' 

§  274.  A  Juror's  Kijtht  to  Servo. —  The  notion  has  pre- 
vailed, not  only  that  a  party  has  a  right  to  demand  the  ser- 
vices of  a  particular  juror,  if  not  ol)no\'ious  to  challenge, 
but  also  that  the  juror  himself  has  a  right  to  insist  that  he 
shall  serve.  Upon  the  latter  point  it  has  been  said : 
"  Every  tax-paying  citizen  of  South  Carolina  is  liable  to  l)e 
drawn  as  a  juryman  ;  and  when  it  falls  to  his  lot,  he  has  a 
right  to  serve,  which  no  one  can  deprive  him  of,  unless  it 
can  be  shown  that  he  labors  under  some  legal  disability 
which  disqualifies  him,  or  unless  he  can  be  challenged  for 
,some  good  and  sufficient  cause  by  parties  in  court.  *  *  * 
This  privilege  is  of  little  value  ordinarily,  but  there  may 
be  occasions  and  junctures  in  the  republic,  when  a  citizen 
would  sooner  perish  than  yield  his  privilege.  A  juryman 
*  *  *  can  at  no  time  be  arbitrarily  discharged  against 
his  consent."  -  It  is  not  perceived  how  that  which  is  ordi- 
narily regarded  merely  as  the  duty  of  a  citizen,  can  be  con- 
verted into  an  inalienable  rio-ht.  The  f oreo;oino:  declaration, 
if  accepted  as  law,  would  rob  the  court  of  the  exercise  of 
that  wise  discretion  in  the  formation  of  a  jury,  which  is  one 
of  the  greatest  safeguards  in  the  administration  of  justice. 
And  it  may  be  olxserved  that,  whenever  the  occasion  arises 
that  a  particular  juryman  "  w^ould  sooner  perish  than  yield 
liis  privilege"  of  sitting  upon  a  jury,  he  obviously  enter- 
tains that  lively  interest  in  the  event  of  the  suit  which  is 
generally  conceded  to  be  a  cause  of  disqualification.^ 

§  275.  AVaiver  of  Causes  of  Challenge. —  (1.)  Of  the 
Challenge   to    the   Array,  by  challenging  the   Polls. —  Al- 

1  Rex  V.  Scalbert,  2  Leach,  706.  Upon  the  discharge  of  a  jury,  after 
being  charged  witli  the  case,  see  the  notes  on  this  case,  and  to  Rex  v. 
FMwards,  3  Camp.  207;  Rex  v.  Kinloclc,  1  Wils.  157;  s.  c,  Fost.  Cr.  L. 
10;  Wedderburn's  Case,  Fost.  Cr.  L.  23;  Rex  v.  Delany,  Jebb  C.  C. 
10(1;  Rex  v.  Barrett.  .Febb  C.  C.  103. 

2  Greer  v.  Xorvill,  3  Hill  (S.  C),  262,  263. 
•^  See  in  this  connection,  ante,  §  27,  et  seq. 


§275.]  WAIVER  .OF  CAUSES  OF  CHALIE^GE.  3f3 

though  it  is  true  that  a  challenge  to  the  polls  is  a  waiver  of 
nil  causes  of  challenge  to  the  array,'  nevertheless,  the 
challenge  to  the  array,  once  taken,  is  not  waived  by  the 
party  subsequently  challenging  jurors  peremptorilj^  and  for 
cause,  in  the  effort  to  secure  a  fair  trial  under  the  circum- 
stances.^ 

(2.)  Of  a  Cause  knoivn  at  the  Time  of  the  Impanelling. 
—  No  rule  is  better  settled  than  that,  if  a  party  to  the  cause 
have  knowledge  of  any  circumstances  tending  to  disqualify 
particular  jurors  from  serving  therein,  he  cannot  hold  back 
these  facts  until  after  verdict,  and  then  produce  them  in 
support  of  a  motion  for  a  new  trial .^  "If,"  said  Chief 
Justice  Shaw,  "  a  part}'  knows  of  any  prejudice  entertained 
by  a  juror,  and  makes  no  exception  when  the  jury  is  im- 

1  Co.  Litt.  158.  a.;  Watkins  v.  Weaver,  10  Johns.  107:  Tallman  v. 
Wooclworth,  2  Johns.  385.  After  a  failure  to  make  such  a  challenge  at 
the  proper  time,  any  objection  to  the  legality  of  subsequent  proceedings 
must  be  addressed  to  the  discretion  of  the  court,  which  will  not  be  exer- 
cised to  the  relief  of  the  party  complaining,  in  the  absence  of  evidence 
showing  some  positive  injury  to  have  been  suffered.  Barton  v.  Quinn, 
Batty  (Irish  Rep.),  552. 

2  Clinton  v.  Englebrecht,  13  Wall.  434.  An  exception,  formally  taken 
to  the  decision  of  the  court  in  disallowing  a  cliallenge.  is  not  waived  by 
•A  negative  answer  to  tlie  inquiry  of  the  court,  at  the  conclusion  of  the 
impanelling,  as  to  whether  tlie  parties  have  any  objection  to  the  jurors 
as  they  stand.     Hathaway  v.  Helmer,  25  Barb.  29. 

^  Lady  Herbert  v.  Shaw,  11  IMod.  118;  Falmouth  v.  Roberts,  9Mee.  & 
W.  469;  Carew  v.  Howard,  1  Root,  323;  Lisle  v.  State,  6  Mo.  426;  Bell 
V.  Howard,  4  Litt.  117 ;  Craig  v.  Elliott,  4  Bibb,  272 ;  Jordan  v.  Meredith, 
1  Binn.  27;  McCorkle  y.  Binns,  5  Binn.  340;  Bellows  v.  Gallup,  Kirby, 
166;  Williams  v.  Poppleton,  3  Oreg.  139;  Tomer  v.  Densmore,  8  Neb. 
384;  Selleck  v.  Sugar  Hollow  Tp.  Co.,  13  Conn.  453;  Bailey  v.  Trum- 
bull, 31  Conn.  581;  Brown  v.  State,  52  Ala.  345;  People  v.  Stonecifer, 
6  Cal.  405;  People  v.  Sandford,  43  Cal.  29;  Eakman  v.  Sheaffer,  48  Pa. 
St.  176;  Parmele  v.  Guthery,  2  Root,  185;  Woodruff  v.  Richardson, 
20  Conn.  238;  Lane  v.  Scoville,  16  Kan.  402;  State  v.  Shay,  30  La.  An. 
114;  Hussey  v.  Allen,  59  Me.  269;  Dolloff  v.  Stimpson,  33  Me.  546; 
."^tate  V.  Anderson,  4  Nev.  265;  Lowe  v.  McCorkle,  8  West.  L.  J.  64; 
United  States  v.  Smith,  1  Sawyer,  277;  Bronson  v.  People,  32  Mich.  34; 
State  V.  Benton,  2  Dev.  &  Bat.  19G;  State  v.  Groome,  10  la.  308.  If  any 
objection  exists  to  the  competency  of  a  trior,  it  should  be  made  at  the 
time  of  his  appointment,  when,  if  overruled,  an  exception  may  be  re- 
served. It  cannot  for  the  first  time  be  made  upon  a  motion  for  a  new 
trial.     People  v.  Voll.  43  Cal'  166. 


304  IMPANELLING  THE  JURY.  [CH.   XIII. 

panelled,  however  good  his  cause  of  challenge  then  is,  it 
must  be  deemed  to  be  waived.  Otherwise,  knowing  of  a 
secret  taint  to  which  the  verdict  may  be  exi)osed,  he  takes 
his  chance  for  a  favorable  verdict,  reserving  a  power  to  im- 
peach it,  should  it  happen  to  be  against  him, — a  proceeding 
inconsistent  with  the  plain  principles  of  fair  dealing,  and 
with  that  frankness  which  ought  to  characterize  the  whole 
course  of  judicial  proceedings."  ^ 

From  the  foregoing,  the  general  rule  follows  that  an  ob- 
jection to  the  competency  of  a  juror,  made  after  verdict, 
must  be  proved  to  have  been  unknown  to  the  party  object- 
ing, and  that  by  proper  inquiry  it  could  not  have  been 
known  before  the  juror  was  sworn. -^  The  knowledge  of  the 
attorney  in  such  a  case  is  the  knowledge  of  his  client.* 
Hence,  the  affidavit  in  support  of  the  motion  for  a  new  trial 
should  unequivocally  allege  that  the  moving  party  and  his 
attornevs  were  in  such  i<>:norance  of  the  matter  affecting  the 


1  Fox  V.  Hazelton,  10  Pick.  275,  278;  Halloek  v.  Franklin,  2  Mete.  558. 
This  rule  is  applicable  also  to  objections  affecting  the  impartiality  of 
referees.  Ibid.  See  also  Ipswich  v.  Essex,  10  Pick.  519;  Merrill  v. 
Berkshire,  11  Pick.  269. 

2  Seal  V.  State,  13  Snied.  &  M.  286;  Itoseborough  v.  State,  43  Tex. 
070;  Brill  v.  State,  1  Tex.  App.  572;  Manion  v.  Flynn,  39  Conn.  330; 
Bradshaw  v.  Uubbard,  6  111.  390;  Jameson  v.  Androscoggin  R.  Co.,  52 
Me.  412;  Tilton  v.  Kimball,  52  Me.  500;  Goodwin  v.  Cloudman,  43  Me. 
577;  Powell  v.  Haley,  28  Tex.  52;  Falmouth  v.  Roberts,  9  Mee.  &  W. 
469;  s.  c,  1  Dowl.  (N.  S.)  633;  Stewart  v.  Ewbank,  3  Iowa,  191.  Knowl- 
edge that  a  juror  is  a  man  of  intemperate  liabits  does  not  include 
knowledge  of  the  fact  that  he  is  subject  to  delirium  tremens.  Hogshead 
V.  State,  6  Humph.  59. 

3  Russell  V.  Quinn.  114  Mass.  103;  Kent  v.  Charlostown,  2  Gray,  281; 
Orrok  v.  Com.  Ins.  Co.,  21  Pick.  456,  471 ;  Parks  v.  State,  4  Ohio  St.  234; 
Eastman  v.  Wight,  4  Ohio  St.  156,  160;  State  v.  Tuller,  34  Conn.  294; 
Falmouth  v.  Roberts,  9  Mee.  &  W.469;  Clough  v.  State,  7  Neb.  324;  An- 
derson V.  State,  14  Ga.  709;  Parker  v.  State,  55  Miss.  414;  Jameson  v. 
Androscoggin  R.  Co.,  52  Me.  412;  Goodwin  v.  Cloudman,  43  Me.  577; 
State  V.  Bowden,  71  Me.  89;  Powell  v.  Haley,  28  Tex.  52;  Pryme  v. 
'Iltchmarsh,  10  Mee.  &  W.  605;  Trueblood  v.  State,  1  Tex.  App.  650; 
Scott  V.  Moore,  41  Vt.  205.  In  one  case,  the  knowledge  of  the  attorney^ 
clerk  seems  to  have  been  imputed  to  the  client.  Falmouth  v.  Roberts. 
9  Mee.  &  W.  469;  s.  c,  1  Dowl.  (N.  S.)  633. 


§   275.]  WAIVER  OF  CAUSES  OF  CHALLENGE  305 

juror's  competency,  that  the  objection  could  not  be  season- 
ably made.^ 

(3, )  Illustrations. —  Perplexing  situations  sometimes  arise 
m  the  process  of  impanelling,  at  which  time  counsel  are  apt  to 
sit  by  in  silence,  leaving  the  court  to  extricate  itself  from  the 
dilemma,  with  the  hope  of  deriving  some  fortuitous  advau- 
tage  from  the  circumstance.  But,  in  general,  this  will  not 
be  permitted.  Thus,  upon  the  trial  of  an  indictment  for 
murder,  a  juror  stated  that  he  had  expressed  an  opinion  as 
to  the  guilt  of  the  prisoner,  whereupon  the  court  asked  the 
counsel  for  the  prisoner  "  what  steps  they  proposed  to  take." 
The  reply  was  made  that  "  they  had  nothing  to  say."  It 
was  held  on  appeal  that  the  defendant  had  no  right  to  com- 
plain of  the  disposition  of  the  juror  as  made  by  the  court. 
"Even  in  a  criminal  case  of  this  magnitude,"  said  McKin- 
NEY,  J.,  "such  apparent  trifling  with  the  court  cannot  be 
sanctioned  :  it  is  incompatible  with  a  fair  and  proper  prac- 
tice in  the  administration  of  justice.  An  objection  of  this 
nature  must  be  made  when  the  opportunity  is  fairly  pre- 
sented;  and  if  then  tacitly  waived,  it  cannot  afterwards  be 
insisted  on  as  a  ground  of  error  in  this  court."  ^ 

Again,  upon  the  trial  of  a  criminal  charge,  after  the  jury 
had  been  impanelled  and  sworn,  and  the  case  opened  by 
both    sides,  a   juror  arose    and  stated  that   he  was  one  of 


1  Achey  v.  State,  64  Ind.  56 ;  Booby  v.  State,  4  Yerg.  Ill ;  State  v.  Tal- 
ler, 34  Conn.  280;  Clough  v.  State,  7  Neb.  324;  Morrison  v.  McKinnon, 
12  Fla.  552.  A  new  trial_^will  not  be  granted  upon  the  sole  affidavit  of  a 
stranger  to  the  case,  who  deposes  to  a  positive  expression  of  opinion 
against  the  defendant  by  one  of  tlie  jurors,  previous  to  the  trial;  and 
further,  that  he  did  not  inform  tlie  attorneys  of  the  defendant  of  this  fact 
until  the  trial  was  concluded.  Non  constat.,  but  that  the  defendant  and 
his  attorneys  were  also  aware  of  the  juror's  prejudice.  Achey  v.  State, 
64  lud.  56. 

2  Xortleet  v.  State,  4  Sneed,  340, 343.  See  also  Com.  v.  Gross,  1  Ashmead, 
281,286;  State  v.  Coleman,  8  So.  Car.  237;  Com.  v.  Marrow,  3  Brewst. 
402;  Gardiner  v.  People,  6  Park.  Cr.  K.  155;  Malone  v.  State,  8  Ga. 
408;  Ham  v.  Lasher,  24  Up.  Can.^Q.  B.  533,  note;  Widder  v.  Buffalo, 
etc.  R.  Co.,  24  Up.  Can.  Q.  B.  534;" People  v.  Doe,  1  Mich.  451;  Living- 
ston V.  Heerman,  9  Martin,  656.  Compare  Cochran  v.  State,  62  Ga. 
731. 

(20) 


301)  IMPANELLING  THE  JUKY.  [CH.  XIII. 

the  o^niiul  jurors  l)v  whom  the  iiulietnient  li;id  been  found. 
Pertinent  inquiries  had  been  made  of  the  juror  previous  to 
the  swearing  , touching  this  cause  of  disqualification,  to  which 
he  had  failed  to  respond,  his  silence  misleading  all  parties. 
The  attorneys  on  both  sides  refused  to  act  in  the  matter, 
Avhcreupon  the  court  cut  the  gordian  knot  by  demanding  of 
the  defendant's  counsel  whether  they  objected  to  proceed- 
ing with  the  jur}'.  Upon  an  affirmative  answer,  this  jury 
was  discharged,  and  another  impanelled,  to  which  course 
the  defendant's  counsel  objected.  It  was  held  upon  these 
facts,  that  the  defendant  had  no  right  to  complain,  because 
his  own  objection  was  not  overruled.  The  discharge  of  the 
jury  Avas  the  necessary  result  of  his  objection  being  sus- 
tained ;  it  was,  therefore,  not  without  his  consent,  and  con- 
stituted no  bar  to  a  further  prosecution.^ 

In  the  case  just  noticed  it  is  apparent  that  the  counsel  for 
the  defendant  desired  to  take  their  chances  for  an  acquittal 
before  the  jury,  at  the  same  time  reserving  an  objection  to 
it  as  illegally  constituted.  A  party  will  never  be  permitted 
to  occup\' positions  so  pointedly  inconsistent.  The  converse 
of  this  case  is  illustrated  by  a  late  decision  in  New  York."-^ 
A  challenge  to  the  arra}^  was  interposed  by  the  prisoner's 
counsel,  but  disallowed,  and  the  impanelling  of  the  jury 
proceeded.  After  several  jurors  had  been  selected,  the 
court  announced  that,  upon  further  reflection,  it  would 
allow  the  counsel  to  renew  the  challenge,  and  would  set 
aside  all  the  jurors  who  had  been  procured  up  to  this  time. 
The  prisoner's  counsel  insisted  that  it  was  too  late  to  rem- 
edy an  error,  if  any  had  been  committed  ;  and,  in  answer  to 
a  question,  whether  he  objected  to  accepting  the  offer  of 
the  court,  and  insisted  upon    going    on  with    the  trial,  he 

1  Stewart  v.  State.  15  Ohio  St.  155.  See  also  State  v.  Allen,  4G  Conn. 
.=i31;  .s-.  c,  10  Reporter.  107;  Keg.  v.  Coulter,  13  Up.  Can.  (C.  P.)  299. 
The  result  would  have  been  otherwise,  if  the  prisoner  had  made  no  ob- 
jection to  proceeding  with  the  jury  as  constituted.  In  such  a  case  the 
court  cannot,  without  the  consent  of  the  prisoner,  and  of  its  own  will, 
withdraw  a  juror.  Such  action  operates  as  a  discharge  of  the  jurj^  and 
an  acquittal.     O'Brian  v.  Com.,  9  Bush,  333. 

2  Cox  v.  People.  19  Ilun,  430;  s.  c,  80  X.  Y.  500. 


§    27(3.]      WAIVER  OF  DISALLOWANCE  OF  CHALLENGE.  307 

replied  that  he  did.  The  trial,  therefore,  proceeded  before 
a  jury  composed  in  part  of  jurors  of  the  obnoxious  panel. 
It  was  held  that,  assuming  the  facts  alleged  to  constitute  in 
law  a  good  ground  of  challenge  to  the  array,  yet  the  pris- 
oner by  declining  to  avail  himself  of  the  offer  of  the  court 
to  re-open  the  question,  and  by  insisting  that  the  trial 
should  proceed,  had  precluded  himself  from  insisting  upon 
the  exception  to  the  ruling  of  the  court,  and  must  be  re- 
«:arded  as  having  abandoned  the  challenge. 

§  276,  Waiver  of  Exception  fox*  Disallowance  of  Good 
Cause  of  Challenge  to  a  Jiu-or. —  (1.)  By  Omission  to 
challenge  the  Juror  peremptorily. —  Some  courts  hold  that 
a  party  cannot  complain  that  an  incompetent  person  was 
placed  upon  the  jury,  unless,  during  the  process  of  impan- 
elling, the  party  aggrieved  exhausted  his  peremptory  chal- 
lenges. According  to  this  view,  it  is  not  enough  that  the 
juror  was  unsuccessfully  challenged  for  cause.  The  party  is 
bound  to  exhaust  his  peremptory  challenges  in  order  to  cure 
any  possible  errors  of  the  court  in  passing  upon  his  challenges 
for  cause  ;  and,  unless  it  appear  that  he  did  so,  the  correct- 
ness of  such  rulings  will  not  be  examined  by  an  appellate 
court.  Conceding  the  judgment  of  the  trial  court  to  have 
been  erroneous,  it  is  held  under  these  circumstances  to  be 
an  error  without  prejudice.^ 

(2.)  A  contrary  View. —  But,  in  the  opinion  of  other 
courts,  no  obligation  rests  upon  a  party  to  make  use  of  his 
peremptory  challenges,  for  the  purpose  of  excluding  a  juror 
unsuccessfully  challenged  for  cause.  He  has  a  right  to 
except  to  the  decision  of  the  court  upon  such  challenge, 
which,  if  erroneous,  must  be  corrected  by  awarding  the 
party  a  new  trial. ^     The  right  of  peremptory  challenge  has 


1  State  V.  Elliott,  45  Iowa,  486;  State  v.  Davis,  41  Iowa,  311;  Barnes 
V.  Newton,  46  Iowa,  567;  St.  Louis,  etc.  R.  Co.  v.  Lux,  63  111.  523;  Tut- 
tle  V.  State,  6  Tex.  App.  556;  Sharp  v.  State,  6  Tex.  App.  650;  McKin- 
ney  v.  State,  8  Tex.  App.  626;  Tooney  v.  State,  8  Tex.  App.  452;  Krebs 
V.  State,  8  Tex.  App.  1;  Palmer  v.  People,  4  Neb.  68;  State  v.  Gill, 
14  So.  Car.  410;  Preswood  v.  State,  3  Heisk.  468. 

2  People  V.  Bodine,  Edni.  Sel.  Cas.  36,  78;  .s.  c,  1  Den.  281;  Freeman 


308  IMPANELLING  THE  JURY.  [CII.   XIII. 

been  said  to  be  armor,  wliidi  the  party  may  wear  or  put 
aside  at  his  pleasure' 

(3.)  B)/  Challenging  pere7nptorily . —  But  courts  gener- 
ally are  agreed  that,  if  the  party  does  make  use  of  his  per- 
emptory challenge,  and  thereby  excludes  a  person  chal- 
lenged for  cause,  he  has  no  right  to  complain  of  the 
decision  of  the  trial  judge  upon  such  challenge,  because  na 
injury  can  be  shown,  since  the  obnoxious  juror  did  not  par- 
ticipate in  the  verdict.^  For  the  same  reason,  if  the  juror 
is  peremptorily  challenged  by  the  adverse  party,  or  excused 
by  the  court,  the  other  party  has  no  ground  of  comi)Iaint 
for  a  disallowance  of  his  challenge  for  cause.'^ 

(4.)  Unless  Peremptory  Challenges  are  subsequently  ex- 
hausted.—  However,  it  must  be  stated  in  connection  with 
the  foregoing,  that  a  case  of  possible  prejudice  to  the  chal- 
lenging party  is  presented  where,  after  removing  the 
obnoxious  juror  by  a  peremptory  challenge,  the  number  of 
such  challenges  guaranteed  by  law  is  exhausted  before  the 
impanelling  of  the  jury  is  complete.  It  is  clear  that  there 
can  be  no  prejudice  unless  the  right  of  peremptory  chal- 
lenge was  thus  exhausted.^     Will  the  law  presume  prejudice 

V.  People,  4  Den.  9,  31;  Brown  v.  State,  .57  Miss.  424;  s.c,  10  Cent.  L.  J., 
376;  People  v.  Stewart,  7  Cal.  140;  Sampson  v.  Sehaffer,  3  Cal.  107. 

1  People  V.  Bodiue,  Edni.  Sel.  Cas.  79,  per  Beardsley.  J. 

2  Schoeffler  v.  State,  3  Wis.  823.  836;  Burt  v.  Panjaud,  99  U.  S.  180; 
s.  c,  18  Am.  L.  Reg.  660;  Freeman  v.  People,  4  Denio,  9;  Stewart  v. 
State,  13  Ark.  720;  Benton  v.  State,  30  Ark.  328;  Friery  v.  People, 
2  Abb.  App.  Dec.  215;  s.  c,  2  Keyes,  424;  54  Barb.  319;  Ferriday  v. 
Selser,  4  How.  (Miss.)  506;  People  v.  Knickerbocker,  1  Park.  Cr.  R.  302; 
Whelan  v.  Eeg.,  28  Up.  Can.  Q.  B.  2,  108;  State  v.  Raymond,  11  Nev. 
98;  State  v.  Davis.  41  Iowa,  311;  Morton  v.  State,  1  Kan.  468;  Wiley  v. 
Keokuk,  6  Kan.  95;  People  v.  Stonecifer,  6  Cal.  405;  Robinson  v.  Ran- 
dall, 82  111.  522;  Wilson  v.  People,  94  111.  299;  Carter  v.  State,  8  Tex. 
App.  372;  Conway  v.  Clinton,  1  Utah,  215;  Krebs  v.  State,  8  Tex.  App. 
1;  Brown  v.  State,  57  Miss.  424;  State  v.  Cockman,  2  Winst.  N.  C.  95; 
Mimms  v.  State,  16  Ohio  St.  221 ;  Erwin  v.  State,  29  Ohio  St.  186;  State 
V.  Hamilton,  27  La.  An.  400;  Bejarano  v.  State,  6  Tex.  App.  265, 
Contra,  Lithgow  v.  Com.,  2  Va.  Cas.  297;  Sprouce  v.  (;!om.,  2  Va.  Cas. 
375;  Dowdy  v.  Com.,  9  Gratt.  727;  Birdsong  v.  State,  47  Ala.  68;  Iver- 
son  V.  State,  52  Ala.  170,  174;  Brown  v.  State,  70  Ind.  576. 

3  Griffin  v.  State,  18  Ohio  St.  438;  Amick  v.  Young,  69  111.  542. 

<  McGowan  v.  State,  9  Yerg.  184;  Burrell  v.  State,  18  Tex.  713;  John- 


§   276.]      WAIVER  OF  DISALLOWANCE  OF  CHALLENGE.  309 

from  the  simple  fact  that  the  peremptory  challenges  were 
exhausted?  Some  courts  answer  this  question  in  the 
affirmative  ;^  but,  in  the  opinion  of  others,  something  more 
must  be  shown,  namel}^  that  after  the  peremptory  chal- 
lenges were  exhausted,  some  objectionable  person  took  his 
place  upon  the  jury,  who  would  otherwise  have  been  ex- 
cluded by  a  peremptory  challenge.^  The  latter  seems  to  be 
the  better  view.  Concedins;  the  challen«:e  for  cause  to  have 
been  improperly  overruled,  it  is  evident  that,  only  under 
such  circumstances  as  just  stated,  can  the  loss  of  the  per- 
emptory challenge,  necessary  to  cure  the  erroneous  decision 
of  the  court,  be  said  to  have  worked  an  injury  to  the  chal- 
lenging party. 

son  V.  State,  27  Tex.  764;  Bowman  v.  State,  41  Tex.  417;  Lester  v. 
State,  2  Tex.  App.  432,  443;  Carroll  v,  St:ite,  :?  Humph.  315;  Robinson 
V.  Eandall,  82  111.  .521;  People  v.  Gaunt,  23  Oal.  156;  People  v.  Gate- 
wood,   20   Cal.    146;  Wiley  v.  Keokuk,  6  Kan.    94;  Morton    v.   State, 

I  Kan.  468;  People  v.  MeGungill,  41  Cal.  429;  Stout  v.  Hyatt,  13  Kan. 
232;  State  v.  McQuaige,  5  So.  Car.  429;  Tuttle  v.  State,  6  Tex.  App.  556; 
Ogle  V.  State,  33  Miss.  383;  Brown  v.  State,  57  Miss.  424;  Mimms  v. 
State,  16  Ohio  St.  221;  Erwin  v.  State,  29  Ohio  St.  186;  State  v.  Bun- 
ker, 14  La.  An.  461 ;  State  v.  Caulfield,  23  La.  An.  148;  State  v.  Lartigue, 
29  La.  An.  642,  646;  State  v.  Hoyt,  47  Conn.  518. 

1  People  V.  Weil,  40  Cal.  268;  Trenor  v.  Central  Pacific  K.  Co., 
50  Cal.  222,  226;  Hubbard  v.  Ptutledge,  57  Miss.  7;  State  v.  Brown, 
15  Kan.  400. 

2  Fleeson  v.  Savage,  S.  M.  Co.,  3  Nev.   157,  163:   State  v.  Raymond, 

II  Nev.  98;  Rothschild  v.  State,  7  Tex.  App.  519;  Grissom  v.  State, 
8  Tex.  App.  386;  Hollis  v.  State,  8  Tex.  App.  620;  Cock  v.  State, 
8  Tex.  App.  659;  Tooney  v.  State,  8  Tex.  App.  452;  Cotton  v.  State, 
32  Tex.  614;  Myers  v.  State,  7  Tex.  App.  641;  Holt  v.  State,  9  Tex. 
App.  571;  Meaux  v.  Whitehall,  8  Bradw.  173.  In  Whelan  v.  Heg., 
28  Up.  Can.  Q.  B.  2,  the  Canadian  courts,  certain  judges  dis- 
senting, held  that  even  under  the  circumstances  stated  in  the  text,  a 
prejudice  to  the  challenging  party  would  not  be  presumed.  In  con- 
sidering this  case,  it  is  to  be  remembered  that  the  prisoner  was  a  member 
of  the  Fenian  organization  so  obnoxious  to  the  Canadian  people;  that 
the  crime  for  which  he  was  tried  was  the  assassination  of  the  Hon. 
Thomas  D'Arcy  ]\IcGee,  a  member  of  the  Canadian  Parliament;  and  that 
he  had  been  fairly  convicted  upon  the  evidence,  as  he  himself  admitted  at 
the  close  of  the  trial.  (See  28  Up.  Can.  (Q.  B.)  p.  141).  It  is  not, 
therefore,  surprising  that  the  majority  in  both  the  appellate  courts  were 
inciiicd  to  fi.,d  from  the  record  tliat  the  prisoner  had  suffered  in  no  re- 
spect from  the  error  of  the  court  in  disallowing  a  legal  cause  of  chal- 

ens:e. 


310  IMPANKLLING  THE  JL  JIV.  [CH.   XIII. 

§  277.  AVitlidrawal  of  Challoiiso. —  A  peiemptory  chal- 
lenge once  taken  i.s  counted  against  the  [)arty.  lie  cannot 
capriciously -withdraw  it.  Thus,  we  read  in  an  old  case  : 
"A  juror  was  challenged  by  the  plaintiff,  and  immediately 
the  defendant  challenged  him  also,  and  before  the  court  had 
ordered  him  to  be  withdrawn,  the  plaintiff  would  have  relin- 
quished his  challenge."  This  privilege  the  court  did  not 
concede,  although  some  opinion  to  the  contrary  was  mani- 
fested by  certain  clerks  of  the  court. ^ 

This  matter  seems  to  be  to  a  certain  extent  within  the 
discretion  of  the  court. ■^  When  the  panel  had  been  gone 
over  without  procuring  a  jury,  the  prisoner  was  allowed  to 
retract  one  of  his  challenges,  in  order  that  the  person  chal- 
lenged might  be  available  to  complete  the  jury.'^  It  is  clear 
that  the  prisoner,  having  challenged  a  juror  peremptorily, 
cannot  subsequently  withdraAv  such  challenge,  and  insist 
that  he  shall  sit  upon  the  jury,  or  substitute  a  challenge  for 
cause,  the  grounds  of  which  came  to  his  knowledge  after  the 
peremptory  challenge  had  been  taken .^  When  a  juror  has 
been  challenged  for  favor,  and  the  juror  excluded,  the  chal- 
lenging part}'^  cannot  afterwards  be  heard  to  say  that  the 
juror  ought  not  to  be  discharged  :  nor  can  he  insist  upon 
examining  him  on  oath,  to  make  it  appear  that  he  is  really 
indifferent,  and  therefore  a  competent  juror.''  In  general, 
it  has  been  observed  that  this  permission  to  withdraw  a  chal- 
lenge should  be  very  cautiously  granted ;  otherwise  the 
right  of  challenge  might  be  converted  from  a  right  to  reject 
into  a  right  to  select,  which  it  was  never  intended  to  be." 
It  ought  not  to  be  permitted  where  its  exercise  will  operate 


I  2  Dyer,  198.  b.  (51). 

*  Morrison  v.  Txjvejoy,  0  Minn.  311). 

3  United  States  v.  Porter,  2  Dall.  345.  See  also  Garrison  v.  Poitland, 
2  Oreg.  123.  A  challenge  to  the  array,  after  allowance,  may  be  waived 
by  the  challenging  party,  and  by  such  waiver  he  will  be  bound,  aliiiough 
upon  trial  for  a  capital  crime.     Pierson  v.  People,  79  N.  Y.  424. 

4  State  V.  Price,  10  Rich.  L.  351;  State  v.  Coleman,  S  So.  Car.  237; 
Rex  v.  Parry,  7  Car.  &  P.  838;  Furman  v.  Applegate,  23  N.  J.  L.  28. 

5  State  v.  Creasman,  10  Ired.  L.  395. 

6  Ante,  §  150. 


§   280.]     CHALLENGE  TO  THE  POLLS  OF  SPECIAL  JURY.  311 

as  a  fraud  upon  the  otlier  party,  who  has  exhausted  his  i)er- 
emptory  challenges.^ 

§  278.   Exception  for   Irregularity  in  Impanelling. —  If 

a  party  would  take  advantage  of  an  irregularity  in  the  im- 
panelling of  the  jury,  he  must  make  his  objection  at  the 
time  the  error  is  made.  Such  objections  will  not  be  heard 
for  the  first  time  on  a  motion  for  a  new  trial,  or  in  an  ap- 
pellate court.^ 

§  279.  Impanelling  in  Territorial  Courts. —  We  have 
previously  seen  that  the  district  courts  of  the  Territories  have 
and  exercise  the  same  jurisdiction  in  all  cases  arising  under 
the  constitution  and  laws  of  the  United  States,  as  is  vested 
in  the  Circuit  and  District  Courts  of  the  United  States,  and 
that  juries  for  the  trial  of  such  cases  must  be  brought  into 
court  under  the  laws  of  the  Territory  where  the  trial  takes 
place .^  The  process  of  impanelling  such  jurors  for  the  trial 
of  a  particular  case  arising  under  the  Federal  statutes  must 
also  be  in  accordance  with  the  laws  of  the  Territory.^ 

§  280.  Kiglit  of  Challenge  to  the  Polls  of  a  Special 
Jury. —  It  seems  to  be  uncertain  whether  at  common  law  a 
challenge  for  cause  could  be  made  to  any  of  a  special 
jury  which  had  been  struck  for  the  trial.  We  have  hitherto 
seen  that  the  right  of  peremptory  challenge  had  no  exist- 
ence, for  the  simple  reason  that  a  struck  jury  was  not 
granted  in  cases  to  which  this  right  was  an  incident.'  The 
statute  of  G  Geo.  IV.,  c.  50,  for  consolidating  and  amend- 
ing the  laws  relating  to  jurors  and  juries,  declared  wliat 
had  previously  l)een  the  common  law,  in  respect  to  the 
want  of  qualifications  required  by  law,  that  this  should  be  a 
cause  of  challenge,  but  provided  that  "  nothing  herein 
contained  shall  extend  in  any  wise  to  any  sj)ccial   juror."  ^ 

^  Com.  V.  Tvvitchell,  1  Brewst.  551. 

2  Bircliaicl  v.  Booth,  4  Wis.  G7;  State  v.  Gill.  U  8o.  Cai-.  410;  People 
V.  Coffmau,  24  Cal.  230;  Bulliner  v.  People,  95  111.  ;5;)5;  post,  §  29G.  But 
see  Fowler  v.  State,  8  Baxt.  573. 

3  Ante,  §  53. 

*  Miles  V.  United  States,  103  U.  S.  304.     See  also  Eeynolds  v.  United 
States,  98  U.  S.  145. 
^  Ante,  §  161. 
«  Sec.  27.     See  Rex  v.  De^pard,  2  Man.  A  Ky.  4()G.  410;  *•.  c,  suh  num. 


312  IMPANELLING  THE  JURY,  [CH.  XIII. 

If,  before  the  Enjilisli  Consolidated  Jury  Act  was  passed, 
the  right  of  challenge  to  special  jurors  existed,  it  would 
seem  that  something  more  specific  than  the  language  in  sec- 
tion 27  of  that  act  would  he  necessary  to  take  it  away.  A 
more  rational  supposition  is  that,  in  the  opinion  of  the  leg- 
islature, the  right  did  not  exist,  and  the  language  used  in 
the  i)roviso  was  to  guard  against  the  extension  of  the  right 

loo  O 

to  special  jurors.^ 

In  some  States,  challenges  ma}^  be  made  to  individual 
jurors  of  the  panel  arrayed  for  the  striking,  before  this 
formality  begins.^  Thus,  the  Supreme  Court  of  Georgia  ^ 
say  in  a  late  case :  "  The  defendant  had  the  right  to  a  panel 
of  twenty-four  from  which  to  strike  —  all  twenty-four  im- 
partial men."  ^  Accordingly,  it  was  held  in  this  case 
that  a  denial  of  the  right  to  challenge  four  incompetent 
jurors  before  the  striking,  by  reason  of  which  the 
defendant  was  forced  to  exhaust  the  same  number  of 
strikes  upon  such  persons,  was  a  fatal  irregularity,  for 
which  the  judgment  must  be  reversed.*     It  is  not  clear  that 

Eex  V.  Sutton,  S  Burn.  &  Cress.  417.  In  this  case  objection  was  made 
after  verdict  that  one  of  the  jurors  was  an  alien.  Lord  Tenterden,  C.  J., 
observed:  '-If  he  liad  been  a  petit  juryman,  I  thinli  the  only  mode  of 
enforcing"  the  objection  would  have  been  by  challenge  to  the  poll  before 
he  was  sworn;  but,  being'  a  special  jurynuvn,  I  think  the  onlj'  opportu- 
nity was  at  the  time  when  the  juiy  was  struck;  for  the  provisions  of  the 
act  with  respect  to  challenges  are  expressly  declared  not  to  apply  to  anj- 
special  juror.  The  obvious  reason  for  that  is,  that  the  parties  have, 
what  they  have  not  in  the  case  of  a  petit  jurj%  a  previous  opportunity  of 
objecting  or  challenging  when  tlie  jury  is  struck."  2  Man.  &  Ey.  410.  In 
Keg.  v.  Sullivan,  8  Ad.  &  El.  831,  833,  also  decided  since  the  statute  in 
question,  Lord  Dennian,  C.  J.,  seems  not  to  have  doubted  the  power  of 
the  court,  in  its  discretion,  to  exclude  a  special  juror  from  the  panel  be- 
fore trial,  for  a  cause  which  would  have  been  good  ground  for  a  chal- 
lenge in  the  case  of  a  common  juror.  Sec  in  this  connection.  Stewart  v. 
State.  1  Ohio  St.  G6. 

'  But  see  Barrett  v.  Long.  8  Irish  L.  331 ;  s.  <■..  7  Irish  L.  439;  O'Con- 
nell  V.  Mansfield,  '.)  Irish  L.  179. 

*  Ante,  §  14,  subsec.  2. 

3  Melson  v.  Dickson.  63  Ga.  682.  To  test  their  competency,  the  jurors 
may  be  examined  upon  the  voir  dire  before  the  strikiiig  begins.  Howell 
V.  Howell,  59  Ga.  1 1.5. 

*  Melson  v.  Dickson,  supra. 


§   280.]    CHALLENGE  TO  THE  POLLS  OF  SPECIAL  JURY.  313 

such  a  conclusion  is  correct.  All  the  obnoxious  jurors 
were  removed  by  the  process  of  striking.  Ron  constat, 
but  that  the  case  was  tried  by  a  perfectly  impartial  jury. 
The  better  view  would  seem  to  be  that  the  act  of  striking 
the  challengeable  jurors  from  the  panel  amounted  to  a  com- 
plete waiver  of  all  objections  previously  made.  In  this 
respect  the  rule  would  be  the  same  as  where  a  challenge  for 
cause  is  erroneously  disallowed,  and  the  juror  is  subse- 
quently removed  by  a  peremptory  challenge.' 

2  Ante,  §  276,  subsec.  3. 


•>14  SWEARING  THE  JURY.  [CH     XIV 


CHAPTER  XIV. 


OF  SWEARING  THE  JURY. 

SECTION. 

286.  Time  foi-  Swearing. 

287.  Sweariug  tiie  Jury  :it  Coniiiion  Law. 

288.  Jurors  must  be  sworn  according  to  Law. 

289.  Form  of  Oatli. 

290.  Swearing  for  the  Term. 

291.  Swearing  singly  or  in  a  Body. 

292.  Re-swearing  the  Jurj'. 

§  28H.  Time  for  Sweai'ing'. —  A  jury,  in  a  civil  case,  can- 
not properly  be  sworn  until  a  plea  has  been  tiled  and  issue 
joined,^  nor  before  the  suit  is  called;'-'  nor,  in  a  criminal 
case,  before  the  accused  has  pleaded  to  the  indictment,  and 
if  the  whole  or  a  portion  of  the  jury  have  l)eeii  so  sworn, 
the  prisoner  may  ask  to  have  them  re-sworn  after  his  plea 
has  been  entered.  A  refusal  of  this  request  would  probably 
be  a  ground  for  reversal,  should  judgment  be  rendered 
against  the  defendant.  But  he  cannot  go  to  trial  without 
objecting  to  this  irregularity,  and,  after  an  adverse  verdict, 
raise  the  objection  for  the  first  time.  He  is  then  presumed 
to  have  waived  the  ground  of  objection  previously  existing.^ 

§  2(S7.  Sweariiij;  the  Jury  at  Coinnum  Law. —  The 
proper  time  and  method  of  swearing  the  jury  at  common 

1  Everhart  v.  Hickman,  4  Bibb,  341;  Clagget  v.  Force,  1  Dana,  -129; 
Shain  v.  Markhaa>,  4  J.  .J.  Marsh.  580;  Hopkins  v.  Preston,  2  A.  K. 
Marsh.  (54;  Miles  v.  Rose,  Hemp.  C.  C.  37;  Baltiu)ore,  etc.  R.  Co.  v. 
Christie,  5  \V.  Va.  325;  Brown  v.  Warner,  2  J.  .J.  Marsh.  39. 

2  Marshall  v.  Krugg,  2  A.  K.  Marsh.  30. 
'  Vezain  v.  People.  40  111.  397. 


§   287.]  AT  COMMON  LAW.  ''■>l^> 

law,  singularly  enough,  seems  to  be  left  in  some  doubt 
upon  an  examination  of  authority.  The  practice  is  thus 
stated  in  Chitty  on  Criminal  Law :  ^  "The  challenges 
being  thus  completed,  and  a  full  jury  of  unexceptional)le 
persons,  by  some  of  the  means  we  have  examined,  being 
ready,  the  clerk  of  the  arraigns  on  the  circuit  proceeds  to 
administer  to  each  of  them  the  following  oath."  ^  Else- 
where we  read  from  the  same  author  that,  "The  usual 
course  is  for  the  clerk  of  the  arraigns,  or  clerk  of  the  peace 
*  *  *  to  call  the  name  of  the  iirst  juror,  and  then,  if 
he  be  not  objected  to,  the  prisoner  so  signifies  ;  and  then 
that  juror  is  sivoni,  and  then  the  next  is  called,  and  he  is 
accepted  or  challenged."^  These  passages  render  it  un- 
certain whether  the  swearino-  was  deferred  until  twelve  were 
procured,  or  whether  the  oath  was  administered  to  each 
juror  as  found  competent.  An  examination  of  the  proceed- 
ings in  the  State  Trials  shows  the  latter  practice  to  have 
been  generally  observed.^ 

Mr.  Joy  in  his  authoritative  treatise^  says  :  "A  juror  is 
then  called,  and,  the  prisoner  stating  that  he  does  not  except 
to  him,  the  clerk  of  the  arraigns  says,  '  hold  the  book  to 
C.  D.,  the  juror,'  Then  the  officer  says,  'look  upon  the 
prisoner,  you  shall  well  and  truly  try,'"  etc.  That  such 
was  the  practice  appears  also  from  several  passages  in 
the  Trials  per  Pais.*^  And  this  is  sustained  by  the  familiar 
rule  that  a  juror  might  be  challenged,  after  he  was  sworn, 
only  for  cause  arising  since  he  was  sworn ,^  plainly  indicat- 
ing a  lapse  of  time  between  the  swearing  and  proceeding  to 

1 1  Chit.  Or.  L.  551. 

2  The  kiiio;iiage  of  Hale's  Pleas  of  the  Crown  appears  to  be  to  the  same 
effect.     2  Hale  P.  C.  293. 

3  1  Chitty  Cr.  L.  p.  547. 

*  Count  Conigsmai  k's  Case,  9  How.  St.  Tr.  12 ;  Cook's  Case,  13  How. 
St.  Tr.  318;  Layer's  Case,  16  How.  St.  Tr.  135,  and  especially  the  re- 
marks of  Mr.  .Justice  Abbott  in  Brauclreth's  Case,  32  How.  St.  Tr.  094. 
771. 

»  Joy  on  Confessions  and  Challenges,  p.  220. 

6  Ed.  of  1725,  pp.  113,  150,  152. 

7  Co.  Inst.  158.  a.;  Vicars  v.  J.angham,  Hob.  235;  Trials  per  Pais  (Ed. 
of  1725),  150. 


31(1  SWEARING  THE  JURY.  [CH  XIV. 

trial,  during  which  the  juror  might  render  liiinself  oIjhox- 
ious  to  challenge.  That  such  was  the  i)ractice  appears  to 
be  the  view  also  of  American  courts.  In  the  leading  case 
of  iState  V.  Potter,^  Chief  Justice  Williams  observed  upon 
the  English  practice:  "There,  each  juror  is  sworn,  as 
soon  as  he  has  been  examined  and  opportunity  given  for 
challenges.  By  our  practice,  the  jurors  are  none  of  them 
sworn  until  all  have  been  examined,  and  opportunity  offered 
for  challenge." '^  And  Chief  Justice  Eyan,  delivering  the 
opinion  of  the  ^uj)reme  Court  of  Wisconsin,  said:  "That 
was  undoubtedly  the  English  practice  at  the  common  law."' 
§  288.  Jiiroi's  must  be  sworn  according  to  Law. —  A 
favorite  ground  of  objection  to  the  regularity  of  proceed- 
ings in  criminal  cases  is,  that  the  jury  were  not  sworn  ac- 
cording to  law.  When  a  form  of  oath  is  prescribed  by 
statute,  that  and  none  other  can  be  administered.  Nor,  in 
a  criminal  proceeding,  will  it  suffice  that  the  oath  prescribed 
by  statute  for  jurors  in  civil  cases  was  administered.  Such 
an  oath  generally  differs  in  terms  from  that  prescribed  for 
jurors  in  criminal  cases,  and  is,  in  other  respects,  inappro- 
priate in  a  criminal  trial. ^  But,  after  verdict,  it  is  too  late 
for  a  party  to  object  for  the  first  time  to  the  form  of  oath 
administered.  The  same  rule  is  here  observed  as  in  the  case 
of  irregularities  in  the  impanelling.  A  party  must  object  at 
the  time  the  irregularity  is  committed.  He  is  not  permitted 
to  take  the  chances  of  a  favorable  verdict  and  make  his  ob- 

'  18  Conn.  16G. 

2  ihid.,  p.  176. 

3  Lamb  v.  State,  36  Wis.  424,  428. 

*  State  V.  Rollins,  22  ?s.  II.  528;  Sutton  v.  State,  41  Tex  513;  Bray  v. 
State.  41  Tex.  560.  Where  two  oatlis  are  prescribed  by  statute,  one  to 
be  adniinistered  to  jurors  on  the  trial  of  ''any  civil  action  or  proceed- 
ing,""  the  other  in  criminal  trials,  the  former  oath  must  be  used  in  a 
bastardy  proceeding.  "  The  use  of  the  latter  is  confined  exclusively  to 
the  trial  of  cases  wholly  and  essentially  criminal  in  their  nature  and 
character.  The  former  is  applicable,  not  only  to  the  trial  of  civil  ac- 
tions, properly  so  called,  but  to  all  such  other  actions  and  special  pro- 
ceedings as,  strictly  speaking,  are  neither  civil  nor  criminal  actions,  and 
hence  cannot  properly  be  classified  under  either  head."'  State  v. 
Worthingham.  23  Minn.  528.  537.     See  also  State  v.  Pate,  Busb.  244. 


§  289.]  FORM  OF  OATH.  317 

jection  subsequently.^  Therefore,  although  the  oath  ad- 
ministered does  not  conform  to  the  statutory  form,  if  the 
record  states  that  the  jury  were  duly  sworn,  a  party  will 
not  be  permitted  to  contradict  it.^ 

§  289.  Form  of  Oath. —  At  common  law  the  form  of 
oath  in  criminal  cases  was:  "You  shall  well  and  truly  try, 
and  true  deliverance  make  between  our  sovereign  lord,  the 
King,  and  the  prisoners  at  the  bar,  whom  you  shall  have  in 
charge,  and  a  true  verdict  give,  according  to  the  evidence: 
so  help  you  God."  ^  This  form  does  not  preclude  the 
jury  from  determining  the  law  as  well  as  the  fact,  and  what- 
ever may  be  the  function  of  the  jury  in  the  determination 
of  the  former,  an  accused  person  can  not  demand  that  the 
jury  shall  be  sworn  a  true  verdict  to  render  according  to 
the  law  and  the  evidence.*  Such  a  form  is  not  sanctioned 
by  any  authoritative  precedents.'^  In  civil  cases,  the  form 
at  common  law  was  "  well  and  truly  to  try  the  issue  be- 
tween the  parties,  and  a  true  verdict  to  give  according  to 
the  evidence."^  In  a  case  of  default,  the  proper  practice 
is  to  swear  the  jury  "  to  assess  the  plaintiff's  damages," 
and  not  to  "  try  the  issues,"  but  this  irregularity  is  not  a 

1  Ante.,  §  275,  subsec.  2. 

'Candler  v.  Haramond,  23  Ga,  493;  Cornelius  v.  Boucher,  1  111.  12; 
Applegate  v.  Boyles,  10  Ind.  435;  Looper  v.  Bell,  1  Head,  373.  In  any 
case,  if  a  party  would  object  to  the  form  of  the  oath  as  actually  ad- 
ministered, he  must  incorporate  it  into  his  bill  of  exceptions,  in  order 
that  a  court  of  error  may  see  whether  the  form  used  was  proper  or  not. 
Bartlett  v.  State,  25  Ohio  St.  669,  672;  Preston  v.  State,  8  Tex.  App.  30; 
Dyson  v.  State,  26  Miss.  362;  Barfield  v.  Impson,  1  Sm.  &  M.  326;  Cato 
V.  State,  9  Fla.  163 ;  Wellborn  v.  Spears,  32  Miss.  139.     See  post,  §  299. 

3  1  Chitty's  Cr.  L.  551 ;  2  Hale  P.  C.  293 ;  4  Bl.  Comm.  355. 

*  O'Connor  v.  State,  9  Fla.  215;  State  v.  Jones,  5  Ala.  666.  Contra^ 
Patterson  v.  State,  7  Ark.  59 ;  Sandford  v.  State,  11  Ark.  328 ;  Bell  v.  State, 
10  Ark.  536;  Bivens  v.  State,  11  Ark.  455. 

»  See  Trials  per  Pais  (^1725),  pp.  192,  193. 

^3B1.  Comm.  365.  It  is  sufficient  if  the  jury  are  sworn  "well  and 
truly  to  try,  and  the  truth  to  speak  upon  the  issues  joined."  Biirk  v. 
Clark,  8  Fla.  9.  Where  a  jury  is  sworn  to  try  "  the  issue  "  in  a  case  pre- 
senting several  issues,  the  word  "  issue  "  will  be  taken  collectively,  all  the 
issues  being  considered  as  one.  Hatcher  v.  Fowler,  1  Bibb,  337;  Bate 
V.  Lewis,  1  J.  J.  Marsh.  316;  Pointer  v.  Thompson,  7  Humph.  532.  But 
see  Adams  v.  State,  11  Ark.  466. 


'318  SWEARING  THE  JURY.  [CH.   XIV. 

sufficient  ground  for  :i  reversal  of  the  judgment-'  But 
conversely,  it  hns  been  held  that  swearing  the  jury  to  in- 
rjuire  of  damages,  when  the  general  issue  is  pleaded,  and 
not  to  try  the  issue,  is  an  error  for  which  the  judgment  will 
be  reversed.'  The  practice  of  swearing  the  jury  as  well  to 
try  the  issue  in  fact,  as  to  inquire  of  the  damages  on  an 
issue  in  law  previously  found  for  the  plaintiff,  obtains  only 
where  the  decision  of  the  issue  in  law  for  the  plaintiff  en- 
titles him  to  damages,  without  regard  to  the  trial  of  the  issue 
in  fact.^  In  suits  upon  penal  bonds,  where  breaches  have 
been  assigned,  swearing  the  jury  to  inquire  into  the  truth  of 
the  breaches,  is  equivalent  to  swearing  them  to  try  the 
issues  ;  ■*  and  so,  swearing  them  to  try  the  issues  joined,  is 
equivalent  to  swearing  them  to  inquire  into  the  truth  of  the 
breaches,  although  the  strictly  correct  practice  would  be  to 
swear  them  to  inquire  into  the  truth  of  the  breaches,  and 
assess  the  damages  as  to  the  party  in  default,  as  well  as 
to  try  the  issues  and  assess  the  damages  as  to  the  defend- 
ants who  pleaded  to  the  action.^ 

§  21)0,  Swearing-  for  the  Term. —  In  the  absence  of  a 
statute  requiring  jurors  to  be  sworn  as  their  names  are  drawn 
and  called  to  try  the  cause,  it  has  been  held  not  irregular  to 
swear  all  the  jurors  in  due  form  at  the  opening  of  the  court 
to  try  the  several  issues  upon  which  they  may  serve  as  ju- 
rors.^ And  although  a  proper  construction  of  the  statute, 
regulating  the  drawing  and  impanelling  of  the  jury,  may 
require  that  the  jurors  shall  be  sworn  after  they  have  been 
drawn,  called  and  approved  by  the  parties,  this  is  a  matter 
of  form  onlv,  and  no  advantao;e  can  be  taken  of  the  irregu- 
larity  that  they  were  sworn  only  at  the  opening  of  the  court, 

1  Colorado  Springs  v.  Hewitt,  3  Colo.  275;  Denny  v.  Hutcheson.  1 
Bibb,  576;  Roberts  v.  Swesirengen,  Hard.  (Ky.)  121. 

2  Williams  v.  Xorris,  2  Litt.  157;  Townsend  v.  Jeffries,  17  Ala.  276: 
Adams  v.  State,  6  Ark.  407,  505.  But  see  Caldwell  v.  Irvine,  4  J.  J. 
Marsh.  108. 

3Swann  v.  Rary,  3  Blackf.  298,  300;  A^aden  v.  Ellis,  18  Ark.  355. 
<  McCoy  V.  State,  22  Ark.  308. 

5  State  V.  Gibson,  21  Ark.  140. 

6  People  V.  Albany.  G  Wend.  .548. 


§    292.]  RE-SWEARING  THE  JURY.  -319 

unless  objection  be  made  when  the  jury  is  impanelled,  at 
which  time  it  would  be  proper  for  a  party  to  insist  that  they 
be  sworn  to  try  the  particular  case.^ 

Although  this  is  a  common  practice,  at  least  in  civil 
eases,  very  positive  objections  exist  to  this  mode  of  proced- 
ure in  criminal,  if  not  in  other  cases.  As  observed  by 
Caton,  C.  J.  :  "  With  some  jurors,  and  in  some  cases,  too 
much  solemnity  cannot  be  observed  in  the  conduct  of  the 
trial.  The  solemnity  of  calling  the  juror  before  the  pris- 
oner, in  the  presence  of  the  court,  and  his  there  taking  the 
solemn  oath  prescribed  by  the  law  to  well  and  truly  try,  and 
true  deliverance  make  of  that  prisoner,  not  only  gives  the 
prisoner  a  comfortable  assurance  that  he  is  to  have  a  fair 
and  impartial  trial,  but  has  a  salutary  tendency  to  prepare 
the  mind  of  the  juror  for  the  solemn  duty  he  is  assuming. 
We  think  the  jury  should  be  sworn  in  each  case."  ~ 

§  291.  Swearing  singly  or  in  a  Body. —  Unless  a  differ- 
ent rule  is  prescribed  by  statute,  jurors  may  be  sworn  as 
they  are  accepted,  or  the  administration  of  the  oath  may  be 
delayed  until  the  panel  is  completed.''  But  since,  in  either 
i-ase,  the  parties  must  exercise  their  right  of  peremptory 
challenge  before  the  jurors  are  sworn,  it  has  been  consid- 
ered to  be  the  better  practice  in  criminal  cases  to  have  the 
panel  full  before  any  of  the  jurors  are  sworn  in  the  case,  so 
as  to  give  to  the  parties  the  fullest  benefit  of  peremptory 
challenges.* 

There  is  no  rule  of  practice,  unless  prescribed  by  statute, 
requiring  four  jurors  to  be  called  at  a  time  to  be  sworn.  A 
less  or  greater  numlier  may  be  called  at  any  one  time,  and 
the  parties  may  be  required  to  pass  upon  them.^ 

§  292.  Re-swearing  the  Jury. —  When,  upon  the  trial  of 
two  persons  jointly  indicted,  a  separate  trial  is  demanded 
by  one  of  the  defendants  according  to  the  statute,  after  the 

-  Hardenbnrgh  v.  Crary,  15  How.  Pr.  307. 
1  Barney  v.  People,  22  111.  160. 

3  People  V.  Keynolds,  16  Cal.  128;  O'Connor  v.  State,  9  Fla.  215,  226. 
*  State  V.  Anderson,  4  Xev.  265;  O'Connor  v.  State,  9  Fla.  215;  ante,  § 
269,  subsec.  7. 
5  Walker  v.  Collier,  37  111.  362. 


320  SWEARING  THE  JURY.  [CH.   XIV. 

jury  and  a  witness  have  been  sworn,  both  the  jury  and  the 
witness  must  be  sworn  again. ^  It  seems  that  the  usual  oath 
taken  by  jurors  includes  any  issue  between  the  parties  sub- 
mitted to  them  on  the  trial  of  the  cause.  Therefore, 
when  the  issue  is  changed  by  an  amendment  of  the  plead- 
ings during  the  progress  of  the  trial,  it  will  not  be  error  if 
the  jury  are  not  re-sworn,  at  all  events  not  unless  the  party 
complaining  made  a  re(|uest  to  this  effect,  which  was  not 
granted.'^  But  this  is  denied  by  the  Supreme  Court  of  In- 
diana,^ which  nevertheless  holds  that,  where  the  amendment 
does  not  change  the  issues,  the  jury  need  not  be  re-sworn.* 

'  Babcock  v.  People,  15  Hun,  .347. 

2  Williams  v.  Miller,  10  Iowa,  344  (overruling  Cole  v.  Swan,  4  G. 
Greene,  32)  ;  Arnold  v.  Arnold,  20  Iowa,  273;  Ilinkle  v.  Davenport,  38 
Iowa,  355. 

3  Kerschbaugher  v.  Slusser,  12  Ind.  453;  Hoot  v.  Spade,  20  Ind.  326. 
*  Knowles  v.  Rexroth,  67  Ind.  59. 


CH.  XV.]  OBJECTIONS  AFTER  VERDICT.  321 


CHAPTER  XV 


OF  OBJECTIONS  AFTER  VERDICT. 

SECTION. 

294.  Proceedings  presumed  to  be  Correct. 

295.  Irregularities  in  Selection,  Drawing  and  Summoning. 

296.  Irregularities  in  Impanelling. 

297.  Record  need  not  contain  tiie  Names  of  .Jurors. 

298.  Record  must  show  the  Fact  of  Swearing. 

299.  Recital  of  Oath  in  Record. 

300.  Misnomer  of  Jurors — English  Cases. 

301.  Continued — American  Authorities. 

302.  Incompetency  of  Jurors. 

303.  Continued  —  Waiver  of. 

304.  Juror's  Affidavit  in  Support  of  Competency. 

305.  New  Trials  not  readily  granted. 

§  294.  Proceedings  presumed  to  be  Correct. —  Error 
must  be  affirmatively  shown  in  the  process  of  procuring  a 
jury,  A  presumption  of  correctness  attaches  to  the  pro- 
ceedings until  they  are  shown  to  be  erroneous.^  Therefore, 
unless  the  contrary  appear,  it  will  be  presumed  that  the 
jurors  who  tried  the  case  were  possessed  of  the  qualifica- 
tions required  by  law.' 

i  Mansell  v.  Reg.,  8  El.  &  Bl.  54;  s.  c,  Dears.  &  B.  375;  Strong  v. 
Kean,  13  Irish  L.  93;  De  Bardelaben  v.  State,  50  Ala.  179;  State  v. 
Monk,  3  Ala.  415,  417;  Ciiesapeake,  etc.  R.  Co.  v.  Patton,  9  W.  Va.  648; 
Campbell  v.  Strong,  Hemp.  C.  C.  265;  Dutton  v.  Tracy,  4  Conn.  93,  94; 
Clark  V.  Collins,  15  N.  J.  L.  473;  State  v.  Marshall,  36  Mo.  400;  Pots- 
damer  v.  State,  17  Fla.  895;  Com.  v.  Stephen,  4  Leigh,  679;  Burfey  v. 
State,  3  Tex.  App.  519;  Pauska  v.  Daus,  31  Tex.  72;  State  v.  Jones,  61 
Mo.  232;  Montgomery  v.  State,  3  Kan.  263;  Green  v.  State,  17  Fla.  669, 
679;  Haudline  v.  State,  6  Tex.  App.  347. 

^  Mansell  v.  Reg.,  supra;  Chesapeake,  etc.  R.  Co.  v.  Patton,  9  W.  Va. 
048;  Shoemaker  v.  State,  12  Ohio,  43;  Isham  v.  State,  1  Sueed,   111; 

(21) 


322  015JECTI0NS  AFTKU  VERDICT.  [Cll.   XV. 

§  205.  Irrejnilaritios  in  Selection,  DraAviiijj:  and  Sum- 
moninfj:. —  A  proi)or  season  is  granted  for  interposing  objec- 
tions to  the  legality  of  the  seleetion,  drawingand  summoning 
of  the  jurors.  If  material  errors  ean  be  detected  in  either 
of  tlicse  steps  in  the  process  of  procuring  the  jury,  an 
objection  will  be  heard  in  the  form  of  a  challenge  to  the 
array.  And  it  would  seem  to  be  a  matter  of  doubtful 
j)r()i)riety  to  entertain  objections  of  this  character  after  the 
trial  has  begun,  although  there  is  no  doubt  that  the  court 
mav  do  so  in  its  discretion.^  But  the  rule  is  very  well 
settled  that,  after  a  verdict,  these  informalities  will  not  be 
permitted  to  affect  the  result,  although  they  did  not  sooner 
come  to  the  knowledge  of  the  party  complaining,  unless 
positive  injury  can  be  shown  to  have  accrued  therefrom. '^ 

Turner  v.  State,  9  Humph.  119;  McClure  v.  State,  1  Yorg.  215,  per 
Catron,  J.;  Keenan  v.  State,  8  Wis.  132;  State  v.  Koderigas,  7  Nev.  328. 
The  bill  of  exceptions  must  contain  a  statement  of  the  facts  upon  which 
the  challenge  disallowed  is  based;  otherwise  il  cannot  be  considered  by 
an  appellate  court.  State  v.  Shaw,  5  La.  An.  342 ;  State  v.  Brnington, 
22  La.  An.  9;  Kipley  v.  Coolidge,  Minor  (Ala.)  11  This  statement  must 
be  in  itself  sufficient  to  support  a  challenge.  State  v.  Millain,  3  Nev. 
409. 

iDovey  v.  llobson,  2  Marsh.  154;  s.  c,  G  Taunt.  4G0;  State  v. 
Stephens,  11  So.  Car.  319;  Steele  v.  Malony,  1  Minn.  347. 

2  A  statute  of  Louisiana  requires  all  objections  to  the  manner  of  draw- 
ing juries',  or  to  any  defect  or  irregularity  that  can  be  pleaded  against 
any  array  or  venire,  to  be  urged  on  the  first  day  of  the  term ;  otherwise 
such  objections  are  considered  as  waived.  State  v.  Thomas,  32  I^a.  An. 
349;  State  v.  Given,  32  La.  An.  782;  State  v.  Harris,  30  La.  An.  90.  A 
statute  of  South  Carolina  provides  that  "no  irregularity  in  any  writ  of 
venire  facias,  or  in  the  drawings,  summoning,  returning  or  impanelling 
of  jurors,  shall  be  sufficient  to  set  aside  the  verdict,  unless  the  party 
making  the  objection  was  injured  by  the  irregularity,  or  unless  the 
objection  was  made  before  the  returning  of  the  verdict."  See  State  v. 
Coleman,  8  So.  Car.  237.  Similar  statutes  are  found  in  other  States. 
See  ]  Bright.  Purd.  Penn.  Dig.,  p.  838,  §  82;  Code  Va.  1873,  p.  1062,  §  21 ; 
Kev.  Stat.  W.  Va.  1879,  ch.  109,  §  25;  R.S.  Wis.  1878,  §  2881 ;  Bush  Dig. 
Fla.,  ch.  104,  §  26;  G.  S.  Mass.  1860,  ch.  132,  §  32;  R.  S.  Me.  1871,  ch. 
82,  §  78.  That  the  name  of  the  same  juror  appeared  twice  upon  the 
venire,  without  any  collusion  or  improper  design,  is  no  ground  of  error. 
McCarty  v.  State,  26  Miss.  302.  Nor  is  it  that  the  name  of  one  of  the 
jurors,  who  sat  upon  the  trial  of  the  case,  was  not  upon  the  venire  re- 
turned by  the  sheriff,  where  it  appears  that  he  had  been  summoned  at 
the  commencement  of  the  term,  his  name  entered  on  the  minutes  and 


§   296.]  IRREGULARITIES  IN  IMPANELLING.  323 

The  reason  for  the  rule  clearly  appears  from  the  remarks  of 
Chief  Justice  Shaw  iu  a  case  of  this  kind:  "This  results 
from  strong  considerations  of  policy  and  expediency,  ren- 
dering it  an  imperative  rule  of  practice.  In  the  trial  of 
every  civil  action,  in  a  large  county,  the  jurors  are  usually 
drawn  from  various  towns.  If  any  irregularity,  found  in 
Belecting  jurors  in  any  of  these  towns,  not  affecting  the 
capacity  or  fitness  of  the  jurors  returned,  would  enable  a 
losing  party  to  set  aside  a  verdict  otherwise  free  from  any 
exception  on  the  merits,  it  would  be  a  dangerous  temptation 
to  such  part}^  to  send  through  the  various  towns  for  the 
means  of  getting  rid  of  an  honest  verdict  upon  technical 
objections."  ^ 

§  296.  Irregularities  in  Impanelling. —  Where  an  ir- 
regularity in  the  impanelling  is  obvious  at  the  time  of  the 
trial,  an  objection  must  be  then  made.  It  is  too  late  to 
raise  the  objection  on  a  motion  for  a  new  trial. ^      Thus,. 

drawn  from  the  box  like  those  of  the  other  jurors.  Thrall  v.  Smilej^,  &' 
Cal.  529. 

1  Page  V.  Dauvers,  7  Mete.  326,  327.  See  also  Eeecl  v.  State,  1  Tex. 
App.  1 ;  Mikell  v.  State,  62  Ga.  368.  The  same  rule  was  applied  in  the 
following  cases  where  objection  was  made,  after  verdict,  to  the  legality 
of  the  drawing.  Eay  v.  State,  4  Tex.  App.  450;  Amherst  v.  Hadley,  1 
Pick.  38;  State  v.  Hascall,  6  N.  H.  352;  Bodge  v.  Foss,  39  N.  H.  406; 
Pittsfield  V.  Barnstead,  40  N.  H.  477;  Wilcox  v.  School  Dist.,  26  N.  H. 
303;  Gormley  V.  Laramore,  40  Ga.  253;  Wentworth  v.  Farmiugton,  51 
N.  H.  128,  135;  Hasselineyer  v.  State,  1  Tex.  App.  690;  State  v. 
Williams,  2  Hill  (S.  C.)  381;  State  v.  Douglass,  63  N.  C.  500;  Anderson 
V.  State,  5  Ark.  445;  W^alker  v.  Boston,  etc.  K.  Co.,  3  Cush.  1,  19;  State 
V.  Beasley,  32  La.  An.  1102;  New  York  v.  Mason,  4  E.  D.  Smith,  142 
State  V.  Underwood,  6  Ired.  L.  96;  State  v.  Courtney,  28  La.  An.  794 
State  V.  Eigg,  10  Ncv.  284;  Com.  v.  Sallager,  3  Clark  (Penn.)  127 
People  V.  Cummings,  3  Park.  C.  E.  343.  And  so  with  respect  to  objec- 
tions affecting  the  validity  of  the  summons.  Bennett  v.  Matthews,  40 
How.  Pr.  428;  Vidal  v.  Thompson,  11  Mart.  23;  Kennedy  v.  Com.,  14 
Bush,  340:  Daniel  v.  Frost,  62  Ga.  697;  Stone  v.  People,  3  111.326;  State 
V.  Boon,  80  N.  C.  461;  Bronson  v.  People,  32  Mich.  34;  Fowler  v.  Mid- 
dlesex, 6  Albn,  92;  Solander  v.  People,  2  Colo.  48;  New  York  v.  Mason, 
4  E.  D.  Smith,  142;  Dayharsh  v.  Enos,  5  N.  Y.  531;  Green  v.  State,  17 
Fla.  669;  Brunskill  v.  Giles,  9  Bing.  13;  Eector  v.  Hudson,  20  Tex.  234; 
Jameson  v.  Androscoggin  E.  Co.,  52  Me.  412. 

2  Com.  v.  Stowell,  9  Mete.  572;  Bristow's  Case,  15  Gratt.  634;  Harden- 
burgh  V.  Crary,  15  How.  Pr.  307;  State  v.  Slack,  1  Bailey  (S.  C.)  330; 


324  OBJECTIONS  AFTER  VERDICT.  [CIl.   XV. 

it  is  !i  familiar  rule  that  talesmen  can  sit  only  in  the 
case  for  which  they  arc  summoned ;  but  the  fact  that 
talesmen  who  were  summoned  to  complete  the  panel  in  one 
case  were  sworn  for  the  term  and  permitted  to  sit  in  other 
•cases,  constitutes  no  valid  objection  to  their  competency 
lifter  verdict.^  A  waiver  of  the  method  prescribed  by  law 
for  the  impanelling  of  a  jury  is  not  a  waiver  of  the  right  of 
trial  by  jurv,  and  therefore  will  be  binding,  under  a  statu- 
tory provision  to  the  effect  that,  in  a  criminal  case,  a  de- 
fendant may  waive  any  right,  except  trial  by  jury,  when  ho 
has  pleaded  guilty.-  The  rule  is  quite  generally  established 
that  a  mere  technical  irregularity  in  the  process  of  impan- 
■clling,  discovered  after  verdict,  will  afford  no  ground  for  a 
new  trial,  where  it  is  not  shown  that  some  substantial  in- 
jury accrued  to  the  party  complaining.^ 

§  297.  Record  need  not  contain  the  Names  of  the 
Jurors. —  Where  it  is  neither  required  by  statute  nor  by  rule 
of  court,  that  the  entry  of  judgment  shall  contain  the  names 
of  the  jurors  who  sat  upon  the  trial,  there  would  seem  to 
be  no  reason  for  setting  out  their  names  in  extenso  upon  the 


(Jlough  V.  Stnte,  7  Neb.  320;  Gurdeubire  v.  State,  6  Tex.  App.  147,  151 ; 
Munroe  v.  Brigham,  19  Pick.  368;  Boyd  v.  State,  17  Ga.  194;  State  v. 
Ward.  2  Ilawks,  443;  State  v.  Belcher,  13  So.  Car.  451);  Ray  v.  State, 
4  Tex.  App.  4.50;  State  v.  Boon,  80  N.  C.  461;  s.  c,  82  N.  C.  637;  Day- 
barsh  v.  Enos,  5  N.  Y.  531;  State  v.  Turner,  25  La.  An.  573;  Parsons 
V.  Harper,  16  Gratt.  64.  Where  the  judge,  during  the  process  of  impan- 
elling the  jury,  permits  those  who  have  been  selected  to  go  at  liberty 
and  mingle  with  the  crowd,  during  a  delay  in  the  proceedings  resulting 
from  the  summoning  of  talesmen,  it  is  the  duty  of  a  party,  having  objec- 
tions to  such  action  of  the  court,  to  make  them  known  at  the  time,  or  at 
l(;ast  before  the  selection  of  jurors  from  tlie  talesmen  begins.  Such  ob- 
jections will  not  avail,  if  held  back  until  after  the  jury  are  sworn, 
.lames  v.  State,  .53  Ala.  380;  Bobbins  v.  State,  49  Ala.  394.  But  see 
Giissom  V.  State,  4  Tex.  App.  374.  Allowing  the  jurors  impanelled,  but 
not  sworn,  to  separate  for  the  night  is  not  an  irregularity  in  civil 
cases.  Miller  v.  Wilson,  24  Pa.  St.  114;  Spencer  v.  DeP'rance,  3  G. 
Oreene,  216;  post^  §  315. 

1  Rowland  v.  Gifford,  1  Pick.  43,  note. 

*  Grant  v.  State,  3  Tex.  App.  1. 

3  People  v.  Ransom.  7  Wend.  417;  Cole  v.  Perry,  6  Cow.  .584;  Grant 
V.  State,  3  Tex.  App.  1 ;  State  v.  Brown,  12  Minn.  538. 


§    297.]  NAMES  OF  JURORS  IN  RECORD.  325 

record.^  There  is  no  uniformity  of  practice  upon  this 
point.  As  recently  stated,  "  In  some  courts,  especially  in 
felony  cases,  they  are  set  out  in  full ;  in  others,  the  name 
of  the  foreman  is  given,  reciting  the  fact  that  eleven  others 
sat  with  him  ;  and  in  others,  the  judgment  simply  recites 
that  a  jury  of  twelve  good  and  lawful  men  were  impanelled 
and  sworn . "  ^ 

But  suppose  the  names  of  the  jurors  are  set  out,  must 
the  record  contain  the  names  of  all  the  jurors  who  sat  in 
the  case?  In  a  civil  case  it  was  held  not  to  be  a  fatal  de- 
fect that  the  record  named  only  eleven  jurors  ;^  especially, 
Avhere  it  elsewhere  appeared  from  the  record  that  the  jury 
was  composed  of  twelve  men.*  "  After  verdict  under  such 
circumstances,"  said  the  court,  "it  is  a  fair  inference  that 
there  were  in  truth  twelve  men  on  the  jury,  but  that,  by  a 
mistake  of  the  clerk  in  entering  the  names  of  the  jurors,, 
the  name  of  one  was  omitted.  The  parties  made  no  objec- 
tion to  the  jury,  and  received  it  as  a  good  and  lawful  one,, 
after  verdict  and  judgment ;  and  no  objection  appearing  to 
have  been  made  at  the  time,  it  will  not  be  noticed  in  this 
court."  ^ 

A  distinction,  however,  is  taken  in  cases  of  felony. 
Under  the  same  circumstances,  as  just  noticed,  the  pre- 
sumption that  the  jury  was  composed  of  twelve  men,  al- 
though plainly  arising  from  the  record,  was  not  j)ermitted 
to  control.^ 

•  Clark  V.  Davis,  7  Tex.  556;  Shoemaker  v.  State,  12  Ohio,  4;5;  Com. 
V.  Stephen,  4  Leigh.  679;  Potsdamer  v.  State,  17  Fla.  895. 

2  Morton  v.  State,  3  Tex  App.  510.  514. 

3  Morlin  v.  Stockbridge,  14  Tex.  165;  Foote  v.  Lawrence,  1  Stew.  48?.. 
If  it  appears  from  the  record  that  a '"jury"  passed  upon  the  issue,  it 
will  be  construed  to  mean  a  jury  of  twelve  men  duly  tpialified,  unles;* 
the  record  itself  shows  the  contrary.  Redus  v.  Wofford,  4  Sm.  &  M. 
579;  Chase  v.  State,  46  Miss.  683,  697.  But  see  Rex  v.  St.  Michael,  2  \V. 
Bl.  718. 

■•  Foster  v.  Van  Norman,  1  Tex.  637. 
^  Foster  v.  Van  Norman,  snpra. 

sDoebler  v.  Com.,  3  Serg.  &  R.  237;  Rich  v.  State,  1  Tex.  App.  206; 
Iluel)ner,  v.  State.  3  Tex.  App.  458. 


326  OBJECTIONS  AFTEK  VERDICT.  [CH.  XV. 

§    298.    lleooiMl    must    .sliow  the    Fact    of  Swearing. — 

Courts  <^eiK'r:illy  are  agreed  that  it  must  ap[)ear  froiu  the 
record  that  the  jury  whieh  tried  the  ease  were  sworn. ^  So 
material  a  fact  cannot  be  supplied  by  operation  of  the  maxim, 
omnia  prcesumuntur  rite  esse  acta.  But  if,  as  a  matter  of 
fact,  it  can  be  shown  that  the  jury  were  sworn,  the  record 
of  the  lower  court  may  be  so  amended  as  to  show  this  fact.'* 
A  distinction  has  been  taken  in  civil  cases  in  those  juris- 
dictions where  the  jurors  arc  not  sworn  as  called  in  each 
case,  but,  on  the  contrary,  the  entire  panel  is  sworn  at  the 
beginning  of  the  term  once  and  for  all.  Under  such  a 
practice,  as  a  matter  of  fact,  the  jury  arc  not  sworn  in  each 
case,  and  therefore  the  recital  that  they  were  so  sworn  is 
no  part  of  the  history  of  the  proceedings,  and  has  been  re- 
garded as  superfluous.*  Unless  the  contrary  appears  from 
the  record,  it  will  be  conclusively  presumed  that  the  oath 

»  Nels  V.  State,  2  Tex.  280;  Cannon  v.  State,  5  Tex.  App.  34;  Kennon 
V.  State,  7  Tex.  App.  326;  State  v.  Gate?,  9  La.  An.  94;  State  v.  Doug- 
lass, 28  La.  An.  425;  Stale  v.  King.  28  La.  An.  425;  State  v.  Phillips, 
28  La.  An.  387;  Eotsford  v.  Yates,  25  Ark.  282;  Lacey  v.  State,  58  Ala. 
385;  Baird  v.  State,  38  Tex.  599;  State  v.  Calvert,  32  La.  An.  224;  State 
V.  Reid,  28  La.  An.  387.  It  is  doubtless  true  that  it  seldom  happens,  as 
a  matter  of  fact,  that  a  jury  is  not  sworn,  although  the  i-ecord  omits  to 
state  the  swearing.  An  attempt  was  lately  made  in  a  Louisiana  case  to 
break  in  upon  the  well  established  rule  that  the  record  must  show  the 
fact  of  swearing.  Although  unsuccessful,  the  result  was  a  divided 
court.  Ludeling,  C  J.,  one  of  the  dissenting  judges,  held  that,  upon  the 
principle  that  courts  generally  will  not  listen  to  objections  to  the  quali- 
fications of  jurors  unless  taken  at  the  proper  time,  before  trial,  a  pris- 
oner should  be  presumed  to  have  waived  such  an  informality  if  it  actu- 
ally occurred.  But,  said  he:  "It  is  morally  certain  that  the  jury  is 
sworn  in  all  cases.  This  results  from  the  manner  in  which  the  jurors 
are  selected  and  sworn  in  courts,  and  I  cannot  perceive  how  it  is  possi- 
ble to  fail  to  swear  a  jury  in  anj^  case."  State  v.  Reid,  28  La.  An.  387, 
388.  See  also  Hardenburgh  v.  Crary,  15  How.  Pr.  307,  where  a  verdict 
rendered  by  a  jury,  one  of  the  twelve  being  unsworn,  was  upheld.  Be- 
fore a  new  trial  will  be  granted  in  such  a  case,  it  must  be  demonstrated 
to  the  satisfaction  of  the  court,  that  the  party  complaining  and  liis  at- 
torneys were  ignorant  of  the  fact,  until  after  verdict,  that  the  juror  was 
unsworn.     Scott  v.  Moore,  41  Vt.  205. 

2  State  v.  Gates.  9  La.  An.  94. 

3  Clark  V.  Davis,  7  Tex.  556;  Drake  v.  Brander,  8  Tex.  351 ;  Pierce  v. 
Tate,  27  Miss.  283;  Furuiss  v.  Meredith,  43  Miss.  302;  Ilewett  v.  Cobb, 
40  Miss.  61.     But  see  Buck  v.  Mallorv,  24  Miss.  1"0. 


§   298.]  RECORD  MUST  SHOW  THE  SWEARING.  327 

required  by  the  statute  was  admiuistered.^  But  where  the 
jury  are  uot  so  sworn  for  the  term,  it  ought  to  appear  that 
they  were  sworn  in  each  case.- 

It  is  sufficient,  if  by  a  fair  construction  of  the  record,  it 
appears  that  the  jury  were  sworn,  althougli  the  fact  is  not 
expressly  stated.'  Thus,  a  statement  that  "the  persons 
whose  names  follow  were  duly  impanelled  and  sworn  to  try 
this  case,"  although  immediately  followed  by  eight  names 
only,  has  been  held  to  include  the  other  four,  although  other 
-entries  intervene  between  the  two  sets  of  names.'*  But 
where  the  record  is  so  carelessly  drawn  that  it  expressly 
appears  that  only  four  of  the  jurors  were  sworn,  there  being 
no  statement  as  to  the  other  eight  than  that  they  were  se- 
lected, the  court  will  not  presume,  in  favor  of  the  regularity 
of  the  proceedings  in  the  court  below,  that  the  jurors  were 
all  sworn.* 

The  bare  statement  in  the  record  that  "  the  court  impan- 
■elled  the  following  jury,"  does  not  necessarily  imply  that 
the  jury  were  sworn.  Strictly  speaking,  the  impanelling  is 
antecedent  to,  and  in  no  manner  connected  with  the  swear- 
ing.^ The  judgment  in  such  a  case  will,  therefore,  be 
reversed.^ 

It  has  been  thought  that,  upon  a  trial  by  a  jury,  a  portion 
of  whom  affirmed  according  to  statute,  in  place  of  taking 
the  customary  oath,  the  record  ought  to  show  that  those  af- 

i  Pierce  v.  Tate,  mpra ;  Waddell  v.  Magee,  53  Miss.  687.  In  this  case, 
Campbell,  J.,  delivering  the  opinion  of  the  court,  said:  "  It  has  been  sev- 
eral times  decided  in  this  State  that  the  record  must  show  that  the  jury 
were  sworn  to  try  the  issue;  but  these  decisions  will  uot  be  followed  by 
this  court,  as  they  are  not  supported  by  reason."  Ibid.,  p.  6SS.  See  also 
■Goyne  v.  Howell,  Minor  (Ala.),  62;  Perdue  v.  Burnett,  Minor  (Ala.), 
138.  The  overruled  cases,  referred  to  in  the  foregoing  remarks,  are 
probably  these:  AVolfe  v.  Martin,  1  How.  (Miss.)  30;  Beall  v.  Campbell 
1  How.  (Miss.)  21;  Irwin  v.  Jones,  1  How.  (Miss.)  497. 

2  Kitter  v.  People,  25  111.  42. 

s  Crist  v.  State,  21  Ala.  137. 

■»  State  V.  Christian,  30  La.  An.  367. 

5  Bass  V.  State,  6  Baxter  (Tenn.),  579,  586. 

6  State  V.  Potter,  18  Conn.  166,  175. 
^  Rich  V,  State,  1  Tex.  App.  206. 


328  OBJECTIONS  AFTER  VEKDICT.  [CH.  X^  . 

firming  were  conscientiously  scrupulous  of  taUinji"  an  oatli,' 
but  whether  this  is  correct,  is  at  least  doubtful.^  A  statute 
of  Enjxland  renders  it  unnecessary  to  specially  state  in  the 
record  what  jurors  were  permitted  to  affirm."' 

§  299.  Recital  of  Oath  in  Record. —  The  rule  seems  to 
be  uniformly  recognized  in  criminal  cases  that,  if  the  record 
purports  to  recite  the  oath  administered  to  the  jury,  and  an 
essential  part  of  the  oatii  prescril)ed  by  statute  is  omitted, 
or  if  it  otherwise  differs  materially  in  form  from  the  latter,, 
a  judgment  of  conviction  will  be  reversed.^     If,  however, 

1  State  V.  Putnam,  1  N.  J.  I..  260;  State  v.  Shavp,  cited  by  Kinse\ . 
C.  J.,  iu  State  v.  Kockafellow,  6  X.  J.  L.  332,  341.  See  also  State  v.  Fox. 
9N.  J.  L.  244;  State  v.  Harris,  7  N.  J.  L.  361. 

2  Clark  V.  Collins,  15  N.  J.  L.  473. 
36  &  7  Vict.,  C.85,  §2. 

<  Lewis  V.  State,  51  Ala.  1;  Davis  v.  State,  54  Ala.  88;  Perkins  v. 
State,  60  Ala.  7 ;  Smith  v.  State,  53  Ala.  486 ;  Commander  v.  State,  60  Ala.. 
1;  Johnson  v.  State,  47  Ala.  9;  Johnson  v.  State  47  Ala.  62;  Biigg  v. 
State,  47  ^ila.  50:  Smith  v.  State,  1  Tex.  App.  408;  Miles  v.  State,  1  Tex. 
App.  510;  Smith  v.  State.  1  Tex.  App.  516;  Bawcom  v.  State,  41  Tex. 
189;  Martin  v.  State,  40  Tex.  19;  Holt  v.  Mells,  4  Smed.  &  M.  110; 
Warren  v.  State.  1  G.  Greene,  106;  Harriman  v.  State,  2  G.  Greene,  271 : 
Dixon  V.  State,  4  G.  Greene,  381;  Bivens  v.  State,  11  Ark.  455:  Bur- 
row V.  State,  12  Ark.  65;  Arthur  v.  State,  3  Tex.  403;  Patterson  v.  State  ^ 
7  Ark.  .59.  A  substantial  compliance  with  the  statutory  form  is  sufficient. 
De  Bardeliiben  v.  State,  hO  Ala.  179;  Bhiir  v.  State,  52  Ala.  343;  State  v. 
Pile,  5  Ahi.  74;  Crist  v.  State,  21  Ala.  137;  Wareham  v.  State,  25  Ohio 
St.  601;  Sharp  v.  Harrison,  10  Heisk.  573;  Hendrick  v.  Cannon,  5  Tex. 
248,251;  Montgomery  v.  Tillotson,  1  How.  (Miss.)  215;  Harriman  v. 
State,  2  G.  Greene,  271 ;  Wrocklege  v.  State,  1  Iowa,  167;  State  v.  Os- 
trander,  18  Iowa,  435;  Thompson  v.  Blackwell,  17  B.  Mon.  624;  Tide- 
water Canal  Co.  v.  Archer,  9  Gill  &  J.  480;  McGuire  v.  State,  37  Ala. 
161;  Edwards  v.  State,  49  Ala.  334;  Walker  v.  State,  49  Ala.  369;  Hen- 
drix  V.  State,  50  Ala,  148;  Washington  v.  State,  60  Ala.  10;  Allen  v. 
State,  60  Ala.  19.  The  statutory  form  of  oath  was :  '•  You  solemnly 
swear  that  in  the  case  of  the  State  of  — against ,  the  defend- 
ant, you  will  a  true  verdict  render  according  to  the  law  and  evidence;  so 
help  you  God."  A  recital  that  the  jury  were  '•  sworn  to  well  and  truh' 
try  the  issue  joined  between  the  State  and  said  defendant,''  differs- 
materially  from  this  form,  and  requires  that  the  judgment  be  reversed. 
Edmondson  v.  State,  41  Tex.  496;  Leer  v.  State,  2  Tex.  App.  495;  Ev- 
erett v.  State,  4  Tex.  App.  159;  Collins  v.  State,  5  Tex.  App.  39;  Smith 
V.  State,  10  Ark.  536;  Sandford  v.  State,  11  Ark.  328.  It  may  be  ques- 
tioned, however,  whether  such  a  recital  ought  to  be  regarded  as  an  at- 
tempt to  set  out  the  oath  actually  administered.     See  McNeil  v.  State-^ 


§   299,]  RFXITAL  OF  OATH  IN  RECORD.  32^' 

the  record  does  not  purport  to  set  out  the  oath,  but  states 
that  "  the  jury  were  duly  sworn,"  or  "  sworn  according  to 
iaw,"  or  simply  "  sworn,"  the  presumption  attaches  that 
the  jury  were  properly  sworn. ^  Such  being  the  law,  it  is 
(juite  obvious  that  the  better  practice  in  making  up  the 
record  is  to  attempt  no  recital  of  the  oath,  but  to  state  sim- 
ply that  the  jury  were  dul}^  sworn. "^ 

47  Ala.  498;  Smith  v.  State,  4  Neb.  277;  Bartlett  v.  State,  28  Ohio  St. 
669,  672;  Anderson  v.  State,  42  Tex.  389;  Dyson  v.  State,  26  Miss.  362. 
366,  380;  Windham  v.  Williams,  27  Miss.  313;  New  Orleans,  etc.R.  Co. 
V.  Hemphill.  35  Miss.  17;  State  v.  Ostrander,  IS  Iowa.  437.  452;  Russell 
V.  State,  10  Tex.  288;  McCuller  v.  State.  49  Ala.  39.  The  Alabama  re- 
ports are  especially  rich  in  reversals  of  judgments  of  conviction,  because 
of  misrecitals  of  the  oath  in  the  record.  Tliese  failures  of  justice  might 
generally  have  been  avoided,  by  considering  the  language  set  forth  in  the 
record  as  not  attempting  to  give  the  oath  actually  administered  totidem 
verbis.  And  this  may  be  fairly  done ;  for,  as  has  been  obi^erved,  it  almost 
never  happens  that  the  swearing  is  incorrectly  performed  by  the  clerk 
misreciting  the  terms  of  the  oath  to  the  jury.  Mitchell  v.  State,  58  Ala. 
417,  419.  Ordmarily,  no  record  is  made  of  the  swearing  of  the  jury  until 
after  verdict,  and  this  entrj'^  is  intended  only  as  a  record  of  the  fact  of 
the  jury  having  been  sworn.  Therefore,  in  late  cases,  this  court  has 
held  the  recital  in  the  record  sufflcient,  although  a  portion  of  the  oath 
prescribed  by  statute,  viz:  "a  true  verdict  to  render  according  to  the 
evidence,"  w^as  omitted.  Mitchell  v.  State,  supra;  Pickens  v.  State. 
58  Ala.  364;  Atkins  v.  State,  60  Ala  45,  oveiTuling  Johnson  v.  State. 
47  Ala.  9,  62;  Smith  v.  State,  47  Ala.  540;  Murphy  v.  State,  54  Ala. 
178;Smith  v.  State  53  Ala.  486.     See  also  Boose  v.  State,  10  Ohio  St.  .577, 

*  See  cases  cited  supra;  also  the  record  of  an  indictment  and  conviction 
for  murder,  in  the  appendix  to  4  Bl.  Comm.  State  v.  Pile,  5  Ala.  72; 
Crist  V.  State,  21  Ala.  137 ;  McGuire  v.  State,  37  Ala.  61 ;  De  Bardelaben  \\. 
State,  50  Ala.  179;  Moore  v.  State,  52  Ala.  424;  Bush  v.  State,  52  Ala. 
13;  McNeil  v.  State,  47  Ala.  498;  Gardner  v.  State,  48  Ala.  263;  Pots- 
damer  v.  State,  17  Fla.  895;  New  Orleans,  etc.  R.  Co.  v.  Hemphill,  35 
Miss.  17,  23;  Judah  v.  McNamee,  3  Blackf.  269;  Johnson  v.  State,  1  Tex. 
App.  519;  Arthur  v.  State,  3  Tex.  403,  405;  Edmondson  v.  State,  41  Tex. 
496;  Leer  v.  State,  2  Tex.  App.  495;  Collins  v.  State,  5  Tex.  App.  39; 
Douglass  V.  Cent.  Land  Co.,  12  W.  Va.  502;  Dillingham  v.  Skein,  Hemp. 
C.  C.  181;  Anderson  v.  State,  42  Tex.  389;  Harris  v.  State,  2  Tex.  App.  102 ; 
Smith  V.  State,  4  Tex.  App.  626;  Stinson  v.  State,  5  Tex.  App.  31 ;  Dyson 
v.  State,  26  Miss.  362;  Windham  v.  Williams,  27  Miss.  313;  Edwards  v. 
State,  47  Miss.  581;  Russell  v.  State,  10  Tex.  288;  Greenwood  v.  State,  17 
Ark.  332;  Anderson  v.  State,  34  Ark.  257;  Palmore  v.  State,  29  Ark.  248: 
Mann  v.  Clifton,  3  Blackf.  304;  State  v.  Schoenwald.  31  Mo.  147;  McRae 
V.  Tillman,  6  Ala.  486;  State  v.  Peterson,  21  Ark,  140.  But  see  Harper 
V.  State,  25  Ark.  83. 

^  Dyson  v.  State,  26  Miss.  362. 


vJoO  OBJECTIONS  AFTER  VERDICT.  [CII.   XV. 

§  300.    MisiionuT    of    Jurors  —  The    English    Cases. — 

Although  a  cauf^e  of  challenge  must  be  stated  before  the 
jury  arc  sworn,  yet  objections  to  jurors,  for  the  reason  that 
their  names  are  incorrectly  spelled  in  the  panel,  or  that  they 
have  answered  to  and  have  been  sworn  under  names  totally 
different  fi'om  their  own,  arc  not  in  the  nature  of  chal- 
lenges. Such  ol)jections,  therefore,  may  be  urged  at  any 
time  during  the  trial,  or  after  verdict.  But  if  known  to 
exist,  they  must  be  made  before  verdict,  otherwise  they  will 
bo  regarded  as  waived.^  The  circumstance  that  a  juror  in- 
correctly named  in  the  panel  has  served  in  a  given  case, 
does  not,  like  the  improper  disallowance  of  a  challenge,  en- 
title the  aggrieved  party  to  a  venire  de  novo  as  a  matter  of 
right.  The  objection,  if  taken  after  verdict,  is  in  the  form 
of  a  motion  for  a  new  trial  addressed  to  the  discretion  of 
the  court.  A  just  verdict  will  not  be  set  aside  for  this 
<;ause,  where  no  variance  appears  upon  the  record,  and  where 
no  imputation  can  be  put  upon  the  jury.*  The  English 
cases  display  so  much  difference  of  opinion  upon  this  sub- 
ject, that  a  careful  examination  of  the  leading  authorities  is 
necessary. 

In  an  earl}'^  case,  one  Richard  Shepherd,  not  of  the  panel, 
was  sworn  upon  the  jury,  answering  to  the  name  of  Richard 
Geater,  a  person  returned  on  the  panel.  Lord  Chief  Justice 
VViLLES  said  of  this  case:  "We  were  of  opinion  likewise 
that  this  could  be  no  cause  of  challenge.  It  could  not  be  a 
challenge  to  the  array,  for  there  was  no  objection  to  the 
array  ;  nor  to  the  [)oll,  for  there  was  no  objection  to  Richard 
Geater,  the  person  returned.  But  this  was  an  extrinsic  objec- 
tion, not  appearing  on  the  face  of  the  poll,  [record  ?]  A  chal- 
lenge to  a  juryman  supposes  him  capable  of  serving  on  the 
jury  if  the  objection  be  answered  ;  but  Richard  Shepherd 
was  no  juryman  at  all.""'  Therefore,  the  court  made  abso- 
lute a  rule  to  set  aside  the  verdict. 


'  Falmouth  v.  Roberts,  9  Mee.  &  W.  4G9;  s.  r.,  1  Dowi.  (N".  S.)  633. 

2  Wray  v.  Thorn,  Willes,  488,  495. 

»  Norman  v.  Beamont,  Willes,  484,  487.     See  also  Parker  v.  Thoroton, 


§   300.]  MISNOMER  OF  JURORS.  331 

There  is  an  abundance  of  cases  in  the  old  reports  upon 
this  subject,  and  the  decisions  there  indicate  little  uniform- 
ity of  rule.  They  are  all  collated  by  Lord  Chief  Justice 
WiLLES  in  his  judgment  in  Wray  v.  Thorn. ^  Many  of 
these  cases  arose  from  a  variance  between  the  spelling"  of 
the  same  name  upon  the  venire  facias  and  the  distringas,"^ 
and  verdicts  rendered  under  such  circumstances  were  held 
void.  To  prevent  this  failure  of  justice,  a  statute  of  jeo- 
fails was  passed,  providing  that,  after  verdict,  the  judg- 
ment should  not  be  stayed  or  reversed  "  by  reason  that 
any  of  the  jury  which  tried  the  said  issue  is  misnamed, 
either  in  the  surname  or  addition,  in  any  of  the  said  writs, 
so  as  upon  examination  it  be  proved  to  be  the  same  man 
that  was  meant  to  be  returned."  ^ 

This  statute,  it  will  be  seen,  did  not  affect  christian 
names,  and  Willes,  C.  J.,  observes:  "As  to  christian 
names,  the  cases  are  various  both  before  and  after  this  stat- 
ute."* In  Wray  v.  Thorn,  he  refused  to  set  aside  a  ver- 
dict because  a  juror,  whose  christian  name  was  Harry,  was 
returned  upon  the  venire  and  distringas  as  Henry,  by  which 
designation  also  he  appeared  upon  the  panel  and  the  postea. 
"  I  think  it  would  be  very  unjust,"  said  he,  "  to  grant  a 
new  trial  in  the  present  case,  since  there  is  no  objection  to 
the  verdict  itself,  since  the  objection  does  not  appear  upon 
the   record,   and   since   it    appears  by   the   affidavit,    which 


1  Stra.  G40;  s.  c,  2  Ld.  Kaym.  1410;  Fines  v.  Norton,  Cro,  Car.  278; 
Blackamore's  Case,  8  Cuke  Eep.  324. 

1  Willes,  488. 

'  We  have  before  shown  that  the  return  upon  the  venire  facias  was  for 
the  purpose  of  enabling  tlie  parties  to  scrutinize  the  panel,  the  jurors 
being  actually  summoned  upon  a  subsequent  process,  the  distringas. 
(Ante,  §  66,  subsf^cs.  ;}  and  4).  Thus  it  is  apparent  that  the  sheriff, 
in  connivance  with  one  of  the  litigant  parties,  might  place  upon  the  dis- 
tringas names  differing  more  or  less  from  those  upon  the  return  to  the 
venire  facias,  indicating  totally  different  persons  from  those  named  in 
the  first  process.  Hence  the  particularity  insisted  upon  in  these  early 
cases,  that  tiiere  should  be  no  variance  between  the  names  upon  each 
process. 

3  21Jac.  I.,  c.  13. 

■•  Wray. v.  Thorn,  Willes,  48S,  4!)2. 


332  OBJECTIONS  AFTER  VERDICT.  [Clf.   X\. 

makes  out  the  objection,  that  the  juryinaii  who  wa-s  sworii 
on  the  jury  and  tried  the  cause  was  the  person  who  was 
summoned  and  returned  and  intended  to  be  a  juror  in  the 
cause,  which  is  the  very  reason  relied  on  in  the  statute  21 
rfac.  I.,  c.  13,  and  in  all  the  cases  where  amendments  have 
been  ordered."  '  In  ijcneral,  il  may  be  ol)served  that  a  vari- 
ance l)etween  christian  Hamc>  is  not  so  im])ortant  as  between 
surnames. - 

In  a  later  case  it  appeared  that,  upon  the  ti'iai  of  a  cap- 
ital felonjs  one  Robert  Curry,  who  had  been  summoned 
upon  the  crown  side  to  attend  as  a  juryman,  had  answered 
to  the  name  of  Joseph  Curry  in  the  sheriff's  panel,  and 
was  sworn  by  that  name.  Mr.  Baron  Eyre,  before  whom 
the  case  was  tried,  conceived  this  to  amount  to  nothing 
more  than  a  misnomer  in  the  })anel  of  the  jurymen  inten- 
ded to  be  returned,  and  held  that  there  was  no  mistrial. 
In  this  position  he  was  sustained  by  the  full  court. "^ 

A  strong  position  was  taken  in  Jlill  v.  Yates.*  \\\  this 
case  the  son  of  one  of  the  jurymen  returned  upon  the 
panel  answered  to  his  father's  name  when  called,  and  served 
upon  the  jury.  Lord  ELLExnoROL(iii  reserved  the  motion 
made  to  set  aside  the  verdict  for  the  consideration  of  the 
Court  of  King's  Bench,  and  afterwards  announced  that  the 
judges  were  all  of  opinion,  that  it  was  a  matter  within  their 
discretion  to  grant  or  refuse  a  new  trial  on  such  a  ground  : 
that  if  no  injustice  had  been  done,  which  was  not  pretended 
in  this  instance,  they  would  not  interfere  in  this  mode,  but 
leave  the  party  to  get  rid  of  the  verdict  as  he  might.  Ho 
further  continued  that,  if  they  were  to  listen  to  such  an  ob- 
jection, they  might  set  aside  half  the  verdicts  given  at 
every  assize,  where  the  same  thing  might  happen  from  ac- 
cident and  inadvertence,  and  possibly  sometimes  fronx 
design,  especially  in  criminal  cases."' 

'  Willes,  488,  494. 
2  lb.  490. 

'  Case  of  a  Juryman,  12  East,  231.  note. 
*  12  East,  229. 

•''  In  tliis  case  the  authority  of  Noinian  v.  Beamont,  Willes,  484  {antPf 
p.  330),  was  urged  witlioiit  success. 


^    300.]  MISNOMER  OF  JURORS.  333 

It  was  aftervviirds  decided  by  Lord  Chief  Justice  Giubs 
in  the  Common  Pleas,  that,  if  a  person  not  summoned  to 
sei've  upon  a  jury  answers  to  the  name  of  a  person  who  is 
summoned  and  serves  in  his  phice,  —  objection  being  taken 
before  verdict,  the  court,  in  the  exercise  of  its  discretion, 
will  award  a  venire  de  novo.  He  distinguished  this  case 
from  that  of  Hill  v.  Yates,^  in  that  the  objection  in  the 
<jase  at  bar  was  taken  before  verdict  instead  of  afterwards.'' 

The  authority  of  Jlill  v.  Yates,  however,  was  somewhat 
.shaken  by  the  case  of  Rex  v.  Iremaine.^  The  circum- 
stances of  the  two  cases  were  nearly  identical,  except  that 
in  the  former  case  it  does  not  appear  that  the  intruder 
lacked  the  qualifications  of  a  juror.  In  the  latter  case, 
however,  the  son,  who  presumed  to  appear  in  the  place  of 
liis  father  who  had  been  summoned,  was  under  the  age  of 
twenty-one  years,  and  was  not  qualified  in  res[)ect  of  prop- 
erty to  serve,  being  possessed  of  no  freehold  or  copyhold 
estate  whatever.  A  new  trial  was  granted,  for  the  reason, 
it  would  seem,  as  stated  by  Littledale,  J.,  that  the  young 
man  was  not  only  incompetent  to  serve   in   any  case,  but 

^  Supra. 

'  Dovej'v.  Hobson,2Marsh.l54;  s.  c.,6Taun.460.  See  also  Reg.  v.  Met- 
calfe, 3  Cox  C.  C.  220 ;  Doe  v.  Michael,  16  Q.  B.  G20 ;  Gee  v.  Swann,  9  M.  & 
W.  685.  But  contra  Torbock  v.  Lainy,  5  Jur.  31S;Ham  v.  Lasher,  24  Up. 
<.;aQ.  Q.  B.  533,  note  a.  Per  se,  it  is  no  ground  for  a  new  trial  that  two 
of  a  special  jury,  Avho  did  not  attend  and  whose  places  were  filled  with 
talesmen,  were  not  in  fact  summoned,  which  circumstance  did  not  come 
to  the  knowledge  of  the  party  against  Avhom  a  verdict  was  rendered, 
until  after  the  trial.  In  such  a  case,  where  no  improper  motives  are  sug- 
gested on  the  part  of  the  summoning  officer,  and  justice  appears  to  have 
beeu  done,  the  court  will  not,  in  the  exercise  of  its  discretion,  accede  to 
the  motion.     Rex  v.  Hunt,  4  Barn.  &  Aid.  430.    Ante,  §  80,  subsec.  4. 

°  7  Dowl.  &  Ry.  684;  s.  c,  16  Eug.  C.  L.  318;  s.  c,  sm5.  nom.  Rex  v. 
Tremearne,  5  Barn.  &  Cress.  254;  11  Eng.  C.  L.  218.  This  decision  was 
in  1826,  sixteen  years  afterwards,  and  by  the  same  court,  the  King's 
Bench.  See  also  Reg.  v.  Mellor,  Dears.  &  Bell  C.  C.  468,  478.  The  au- 
fliority  of  Hill  v.  Yates  is  repudiated  in  the  State  of  New-  York.  See 
Sutherland,  J.,  in  People  v.  Ransom,  7  Wend.  417,  424;  Doyton  v. 
<;hurch,  7  Abb.  N.  C.  367.  In  Ohio,  McGill  v.  State,  34  Ohio  St.  228 ; 
.s.  c,  18  Am.  L.  Reg.  455.  In  Pennsylvania,  Com.  v.  Spring,  5  Clark, 
238;  s.  c,  1  Am.  L.  Reg.  245.  In  New  Jersey,  Robson  v.  Archer,  2  N. 
,I.L.  108. 


334  OBJECTIONS  AFTER  VERDICT.  [CH,   XV. 

also  beciiusc  he  was  not  returned  on  the  panel,  nor  was  he 
summoned.  "  lie  was,  therefore,  no  juror  at  aJl,  and  it  is 
but  the  verdict  of  eleven  men."  ^ 

No  other  case  of  importance  upon  this  subject  is  found 
in  the  Eugl'sh  reports  for  more  than  thirty  years  sub- 
sequent to  the  time  of  lieg.  v.  Tremaine."^  We  next 
come  to  the  case  of  Regina  v.  Mellor.^  This  was  a 
crown  case  reserved,  and  was  heard  })efore  fourteen 
judges  and  barons.^  The  prisoner  had  been  convicted 
of  murder  and  sentenced  to  death ;  but  execution  was 
lespited  until  the  opinion  of  the  Court  of  Criminal  Ap- 
j)eal  could  be  taken  upon  the  following  facts,  which  were 
alleged  to  amount  to  a  mistrial  :  The  panel  of  petit  jurors 
returned  by  the  sheriff  contained  the  names  of  two  i^ersons, 
Joseph  Henry  Thorne  and  William  Thorniley.  The  name 
of  Joseph  Henry  I'horne  was  called  from  the  panel  as  one 
of  the  jury  to  try  the  case  ;  and  Joseph  Ileniy  Thorne,  as 
was  supposed,  went  into  the  box  and  was  duly  sworn  as 
Joseph  Henry  Thorne  without  challenge  or  objection.  It 
was,  however,  dis(.'overed  the  next  day,  and  after  the  pris- 
oner had  been  convicted,  that  William  Thorniley  had,  by 
mistake,  answered  to  the  name  of  Joseph  Henry  Thorne 
when  called,  and  had  gone  into  the  box  and  been  sworn  as 
Joseph  Henry  Thorne,  the  prisoner  having  been  offered  his 
challenge  when  the  person  called  Joseph  Henry  Thorne,  but 
who  was  really  William  Thorniley,  came  to  the  book  to  be 
sworn. 

The  result  of  their  deliberations  was  a  remarkable  differ- 
ence of  opinion  among  the  members  of  the  court.     Six  of 


1  7  Dowl.  &  Ry.  G84,  690. 

2  See,  however,  Falmouth  v.  Roberts,  0  Mee.  &  "W.  469;  s.  c,  1  Dowl. 
(N.  S.)  633 ;  Reg.  v.  Metcalfe,  3  Cox  C.  C.  220. 

3  Dears.  &  Bell  C.  C.  468;  s.  c,  4  Jur.  N.  S.  214;  27  L.  J.  (M.  C.)  121 ; 
7  Cox  C.  C.  4.54. 

<  This  case  was  argued  in  1858  before  Lord  Campbell,  C.  J.,  Cockburn, 
C.  J.,  Pollock,  C.  B.,  Coleridge,  .).,  Wightman,  J.,  Erie.  J.,  Williams, 
J.,  Martin,  B.,  Crompton,  J.,  Crowder,  J.,  Willes,  J.,  Watson,  B.,  Chan- 
nell,  B.,  and  Byles,  J. 


§   301.]  MISNOMER  OF  JURORS.  335 

them  held  that  there  had  been  a  mistrial/  au  equal  number 
that  there  had  iiot,"-^  while  two  expressed  no  opinion  upon 
the  point.^  This  difference  of  opinion  is  especially  remark- 
able, inasmuch  as  both  of  the  jurors  in  question  appear  to 
have  been  duly  summoned  and  qualified  for  service.  It 
would  seem  that,  upon  the  authorities  previously  examined, 
little  difficultv  ouo;ht  to  have  been  experienced  in  reachinor 
the  conclusion  that  there  was  no  mistrial.'*  Such  would 
probably  be  the  opinion  of  the  court,  should  the  case  arise 
again,  for  we  find  it  regarded  as  settled  law  in  a  late 
case  decided  by  the  Court  of  Common  Pleas,  that  the 
court  will  not  in  its  discretion  grant  a  new  trial  in  a  case 
where  a  person  not  of  the  panel  has  served  upon  the  jury, 
unless  substantial  injustice  has  been  done  by  a  wrong  juror 
having  served.^ 

§  301.  Continued  —  American  Autliorities. —  Coming  to 
the  authorities  in  this  country,  it  seems  clear 'that  if  a 
juror's  name  is  misspelled  in  the  panel,  or  in  the  copy 
thereof  delivered  to  the  defendant  in  a  criminal  case,  the 
proper  practice,  where  the  mistake  is  discovered  before  ver- 
dict, is  to  have  such  juror  set  aside  on  motion  of  either  the 
State  or  the  defendant.'^     Such  an  irregularity  affords  no 

1  Lord  Campbell,  C.  J.,  Cockburn,  C.  J.,  Coleridge,  J.,  Wiglitman,  J., 
Martin,  B.  aud  Watson,  B. 

2  Erie,  J.,  Cromptou,  J.,  Crowder,  J.,  Willes,  J.,  Channell,  B.  and 
Byles,  J. 

3  Pollock,  C.  B.,  and  Williams,  J. 

*  The  circumstance  that  this  was  a  criminal  case  aud  j^unishable  capi- 
tally, probably  affected  the  judgment  of  those  holding  that  there  had 
been  a  mistrial. 

swells  V.  Cooper  (1874),  30  L.  T.  N.  S.  721.  This  was  an  action 
tried  before  a  common  jury.  The  name  of  Thomas  Fox  being  called 
from  the  common  jury  panel,  one  Thomas  Cox  of  a  special  jui-y  panel 
went  into  the  box  by  mistake,  served  upon  the  jury,  and  joined  in  the 
verdict  rendered.     A  rule  for  a  new  trial  was  discharged. 

eSwofford  v.  State,  3  Tex.  App.  7G,  89;  State  v.  Powell,  7  N.  J.  L. 
244,  246;  Rash  v.  State,  Gl  Ala.  89;  Mingia  v.  State,  54  111.  274.  In  one 
case,  however,  the  error  being  in  the  middle  name  of  the  juror,  the  mis- 
take was  corrected  and  the  juror  sworn.  Judge  v.  State,  8  Ga.  173. 
See  also  Eatteree  v.  State,  53  Ga.  570;  Hurley  v.  State,  29  Ark.  18. 
Where  a  juror's  name  and  residence  are  correctly  given  in  the  panel, 


y>SQ  OBJECTIONS  AFTER  VEKDICT.  [CH.  XV. 

iiiouiid  for  (|u:isliing  the  lenire  or  stopping  the  trial.' 
As  to  this  objection  when  tiikcn  after  verdict.  Diirin<r 
the  impanelling  of  a  jnr}',  when  it  became  api)arent  that 
several  of  the  names  of  the  jurors  were  slightly  misspelled 
upon  the  [)anel,  the  court  observed  :  "  The  jurors  caunot  be 
sworn.  It  would  be  a  mistrial,  if  it  should  appear  by  the 
record,  that  the  juror  sworn  was  not  the  same  person  sum- 
moned and  returned  on  the  venire."  ■  It  would  hardly 
seem  that  this  dictum  can  be  maintained  as  a  rule  of  law. 
It  was  a  hasty  utterance  l)y  a  trial  court,  against  wdiich  may 
be  arrayed  the  deliberate  judgment  of  other  courts.^ 

If  the  juror's  name  stands  correct  upon  the  panel,  and  by 
such  name  he  is  called  and  sworn,  it  cannot  be  said  that  the 
accused  has  been  prejudiced  in  his  right  of  challenge,  al- 
though he  is  otherwise  named  in  the  list  of  voters  from 
which  the  jury  was  taken.*  It  was  so  held  in  one  case, 
where  it  appeared  after  verdict  that  one  of  the  jurors, 
although  correctly  named  in  the  panel,  resided  outside  of 
the  district  from  which  the  jurors  were  drawn.  The  name 
upon  the  panel  indicated  a  different  person  residing  within 
the  limits  indicated.  The  juror  who  served  had  been  duly 
summoned.  The  court,  while  viewing  his  summons  as  a 
piece  of  gross  misconduct  on  the  part  of  the  sheriff,  did  not 
regard  his  presence  upon  the  jury  as  a  fraud  and  an  impo- 
sition upon  the  court  and  the  parties.  The  complaining 
l)arty  being  unable  to  show  that  he  had  been  actually  in- 
jured or  prejudiced  by  this  misconduct  of  the  officer,  the 
verdict  was  sustained.^ 

Under  a  statute  of  Pennsylvania,  a  form  of  which  will 
be  found  in  certain  other  States,  providing  that  pleading 
he  may  be  sworn,  notwithstanding  a  niisdescripliou  of  his  occupation, 
(^iiigley  V.  Com.,  84  Pa.  St.  18. 

1  Rasli  V.  State,  Gl  Ala.  89;  Bill  v.  State,  29  Ala.  :J4:  Floyd  t.  State, 
.").■)  Ala.  Gl ;  Prall  v.  Feet,  3  La.  280. 

2  United  States  v.  Wilson,  Baldwin,  78,  83. 

3  Anderson  v.  State,  5  Ark.  444;  Smith  v.  School  District,  40  Mich. 
143.      See  also  Reg.  v.  O'Connell,  7  Irish  L.  261. 

*  Shaw  V.  Newman,  14  Fla.  128. 

5  Bennett  v.  Matthews,  40  How.  Pr.  428.  See  also  Mann  v.  Fairlee, 
4  4  Vt.  672.     Compare  Reg.  v.  Phillips,  11  Cox  C.  C.  142. 


5}    302.]  INCOMPETENCY  OF  JURORS.  337 

the  o-eneral  issue,  or  a  trial  in  anv  court,  civil  or  criminal, 
shall  be  a  waiver  of  all  errors  and  defects  in  the  precept, 
'Venire,  drawing,  summoning,  and  returning  of  jurors,  it 
was  held  that,  after  a  conviction  of  murder  in  the  first  de- 
gree, it  was  too  late  to  object  to  mistakes  in  the  process  as 
to  the  christian  and  surname  of  some  of  the  jurors  by 
whom  the  verdict  was  rendered.' 

§  302.  Incompetency  of  Jurors. —  We  have  hitherto  seen 
that  the  improper  disallowance  of  a  cause  of  challenge  is  a 
ground  for  a  venire  de  novo,  which  a  party  may  demand  as 
a  matter  of  right. ^  This,  of  course,  presupposes  the  chal- 
lenge to  have  been  duly  taken.  Objections,  however,  af- 
fecting the  competency  of  jurors  will  be  heard  after  verdict 
in  support  of  a  motion  for  a  new  trial. ^  But  the  moving 
party  must  satisfy  the  court  that  such  objections  were  not 
within  his  own  knowledge,  or  that  of  his  attorneys,  in  sea- 
son to  have  urged  them  sooner  ;  otherwise  they  will  be  held 
to  have  been  waived.^  This  assurance  is  ordinarily  given  to 
the  court  in  the  form  of  an  affidavit  hy  the  party  and  his 
attorneys  to  this  effect.'^ 

A  considerable  body  of  cases  in  this  country  seem  to 
stand  as  authority  for  the  proposition  that,  where  it  can  be 
shown  to  the  satisfaction  of  the  court  that  the  objection 
affecting  the  juror's  competency  was  not  discovered  until 
after  verdict,  the  moving  party  has  the  same  right  to  a  new 
trial  which  he  had  to  exclude  the  obnoxious  juror  upon  a  chal- 
lenge had  the  cause  been  urged  before  he  was  sworn.  An 
early  Maryland  case  is  often  cited  to  this  effect.  It  appeared 
after  verdict  that  one  of  the  jurors  had  not  taken  the  oath 
of  fidelity  to  the  State  as  required  by  law.  Upon  objection 
being  made  at  this  time,  the  court  disposed  of  the  case  as 

1  Jewell  V.  Com.,  22  Pa.  St.  94. 

2  Rex  V.  Edmunds,  4  Barn.  &  Aid.  471,  473;  ante,  §  250. 

3  Dent  V.  Hertford,  2  Salk.  645.  Judgment  was  arrested,  where  it  ap- 
peared that  a  juror  who  had  been  challenged  and  withdrawn  was 
brought  in  on  a  taUs,  and  sat  upon  the  trial  of  the  cause.  Hungate  v. 
Hamond,  Cro.  Eliz.  188.     But  see  Koenig  v.  Bauer,  1  Brewst.  304. 

■•  Ante,  §  275,  subsec.  2. 
5  Id. 

(22) 


338  OH.JECTIO.NS  AFTER  VPHJOICT.  [CH.   XV_ 

follows  :  "  Let  there  be  a  new  trial.     A  )io)i.  juror  is  totally 
incapacitated  to  servo  on  a  jury."  ' 

The  foregoing,  however,  is  contradicted  by  an  over- 
whelniing  ariay  of  authority.  A  recognized  cause  of  chal- 
lenge, discovered  after  vei'dict  to  exist  against  jurors  who 
have  sat  upon  the  trial,  does  not  per  se  entitle  a  party  in 
any  case,  civil  or  criminal,  to  a  new  ti'ial.  It  has  been 
repeatedly  so  determined  where  some  of  the  jurors 
were  aliens,-'  or  not  of  the  jurj'  list  as  selected  l)y 
the  county  authorities;''  non-residents,  or  not  citizens 
of  the  county  or  State;*    lacking    in    statutory    qualifica- 

1  Shane  v.  Clarke,  3  liar.  &  McH.  101,  lOli.  It  was  so  held  where  one 
of  the  jurors  was  an  alien.  Quinn  v.  Halbert,  52  Vt.  353;  Giiykowski  v. 
People,  2  111.  476  (overruled  in  Chase  v.  People,  40111.  352,  358);  was 
lacking  in  statutory  qualitications.  Brings  v.  Georgia,  15  Vt.  61;  Stale 
V.  Babcock,  1  Conn.  401;  Mann  v.  Fairlee,  44  Vt.  673;  Eastnian  v. 
Wright,  4  Ohio  St.  156;  State  v.  Groonie,  10  Iowa,  315;  was  connected 
with  one  of  the  parties  by  relationsliip  within  the  degree  constituting  a 
cause  of  cliallenge.  Hardy  v.  Sproule,  32  Me.  310;  Lane  v.  Goodwin,  47 
Me.  593 ;  Brown  v.  State,  28  Ga.  43U ;  Georgia  K.  Co.  v.  Hart,  60  Ga.  550 ; 
VVoodbridge  v.  Kayniond,  Kirby,  280;  had  expressed  his  opinion  upon 
the  issue  to  be  tried,  or  upon  the  guilt  of  the  defendant  in  a  criminal 
case.  McKinley  v.  Smith,  Hard,  (Ky.)  167;  United  States  v.  Fries,  3 
Dall.  515;  State  v,  Hopkins,  1  Bay,  372;  Tenney  v.  Evans,  13  N.  H.  462; 
Monroe  v.  State,  5  Ga.  85;  Wade  v.  State,  12  Ga.  25;  Eay  v.  State,  15 
Ga.  223;  Moncrief  v.  State,  50  Ga.  470;  Pierce  v.  Bush,  3  Bibb,  347; 
French  v.  Smith,  4  Vt.  363:  Vance  v.  Ilaslett,  4  Bibb,  191 ;  llerndon  v. 
Bradsliaw,  4  Bibb,  45;  Tweedy  v.  Brush,  Kirby,  13;  Deining  v.  Hurlburt, 
2  D.  Chip.  45;  or  was  interested  in  the  event  of  the  suit.  Page  v.  Contoo- 
cook,  etc.  K.  Co.,  21  X.  H.  438.  But  an  objection  to  a  juror,  which  is 
not  good  as  a  principal  cause  of  challenge,  is  uo  ground  for  setting  aside 
the  verdict.  Chapman  v.  Welles,  Kirby,  132;  Walton  v.  Augusta 
Canal  Co.,  54  Ga.  245.    But  see  Cain  v.  Ingham,  7  Cow.  478. 

2  Rex  V.  Sutton,  8  Barn.  &  Cress.  417;  s.  c,  15  Eng.  C.  L.  252;  Hol- 
lingsworth  v.  Duane,  4  Dall.  353;  State  v.  Quarrel,  2  Bay,  150;  Com.  v. 
Thompson,  4  Phila.  215;  Brown  v.  Lacrosse  Gas  Co.,  21  Wis.  51;  Pres- 
bury  v.  Com.,  S)  Dana,  203;  Turner  v.  Ilahn,  1  Colo.  23;  Jones  v. 
People,  2  Colo.  351;  Chase  v.  People,  40  111.  352;  Bennett  v.  Matthews. 
40  How\  Pr.  428;  Ripley  v.  Coolidge,  Minor  (Ala.)  11;  State  v.  Mc- 
Donald, 8  Oreg.  113;  Kennedy  v.  Com.,  14  Bush,  340. 

»  Gormley  v.  Laramore,  40  Ga,  253;  Edwards  v.  State,  53  Ga.  428; 
Urquhart  v.  Powell,  59  Ga.  721;  Osgood  v.  State,  63  Ga.  791. 

Uioseborough  v.  State,  43  Tex.  570;  O'Mealy  v.  State,  1  Tex.  App. 
180;  Clarke  v.  Territory,  1  Wash.  (Terr.)  82;  State  v.  Kennedy,  8  Rob. 
'^La.)  590;  Costly  v.  State,  19  Ga.  614;  Zickefoose  v.  Kuykendall,  12  W. 


§    302.]  INCOMPETENCY  OF  JURORS.  l^od 

tioiis  ;  ^  less  than  twenty-one,-  or  more  than  sixty^  years  of 
age ;  rehited  to  the  parties  within  the  disqualifying  de- 
grees;"* interested  in  the  event  of  the  SLut;^  whei-e 
the  jurors  had  expressed  disqualifying  opinions  upon 
the    subject-matter   to  be  tried ;  ^  or   were    otherwise    sub- 

Va.  23;  Major  v.  Piilliaiii,  3  Daua,  583;  Mt.  Desert  v.  Cranberry  Isles. 
4t)  Me.  411;  Hull  v.  Albro,  2  Disney,  147;  Thonipsou  v.  Paige,  16  Cal.  78. 

^  Ex  parte  Phillips,  10  Exch.  731;  s.  c,  1  Jur.  (N.  S.)  143;  24  L.  J. 
Exch.  79 ;  Stale  v.  Patrick,  3  Jones  L.  443 ;  State  v.  White,  68  N.  C.  158 ; 
Tweedy  v.  Briggs,  31  Tex.  74;  Thompson  v.  Com.,  8  Gratt.  637;  Gilbert 
V.  Rider,  Kirby,  180,  184;  Orcutt  v.  Carpenter,  1  Tyler,  250;  People  v. 
Jewett,  6  Wend.  386;  Plnley  v.  Hayden,  3  A.  K.  Marsh.  330;  Bratton  v. 
Bryan,  1  A.  K.  Marsh.  212;  Kennick  v.  Walthall,  2  A.  K.  Marsh.  23;. 
State  V.  Usher,  2  Xott.  &  McC,  261;  People  v.  Sandford,  43  Cal.  21)  ;r 
X.  c,  I  Green  C.  L.  682;  Steele  v.  Malony,  1  Minn.  347;  Clark  v.  Vaii! 
Vraucken,  20  Barb.  278;  Estep  v.  Waterous,  45  Ind.  140;  Croy  v.  State^ 
32  Ind.  384;  Pickens  v.  Hobbs,  42  Ind.  270;  State  v.  McLean,  21  La.  An. 
546;  Gillooley  v.  State,  58  Ind.  182;  Kingen  y.  State,  46  Ind.  132; 
VV^hitehead  v.  AVells,  29  Ark.  99;  Watts  v.  Ruth,  30  Ohio  St.  32:  State 
V.  Bunger,  14  La.  An.  461;  State  v.  Parks,  21  La.  xVu.  251;  Kenrick  v... 
Reppard,  23  Ohio  St.  333;  State  v.  Madoil,  12  Fla.  151;  Manstield,  etc. 
R.  Co.  V.  Clark,  23  Mich.  519;  Patterson  v.  State,  70  Ind.  341;  Bide  v... 
State,  1  Tex.  App.  453;  Yanez  v.  State,  6  Tex.App.  429. 

^Trueblood  v.  State,  1  Tex.  App.  650;  Wassum  v.  Feeney>  121' 
Mass.  93. 

3  Williams  v.  State,  37  Miss.  407;  Munroe  v.  Brigham,  19  Pick.  30«; 
Davis  V.  People,  19  111.  74;  Seacord  v.  Burling,  1  How.  Pr.  175;  Cohron 
V.  State.  20  Ga.  753. 

*  Quinebaug  Bank  v.  Leavans,  20  Conn.  87;  Eggleston  v.  Smiley, 
17  Johns.  133;  Hayes  v.  Thompson,  15  Abb.  Pr.  (X.  S.)  220;  McLellau 
V.  Crofton,  6  Me.  307;  Tidewater  Canal  Co.  v.  Archer,  9  Gill  &  J.  479; 
Orme  v.  Pratt,  4  Cranch  C.  C.  124;  Smith  v.  Earle,  118  Mass.  531; 
Baker  v.  State,  4  Tex.  App.  223;  AVickersham  v.  People,  2  111.  128. 

5  Williams  v.  Great  AV.  R.  Co.,  3  Hurl.  &  N.  869;  s.  c,  28  L.  J.  (Exch.) 
2;  (compare  Bailey  v.  Macaulay,  13  Q.  B.  815);  Glover  v.  Wooisey, 
Dudley  (Ga.)  85;  Josey  v.  Wilmington,  etc.  R.  Co.,  12  Rich.  L.  134; 
Boland  v.  Greenville,  etc.  R.  Co.,  12  Rich.  L.  368;  Magness  v.  Stewart, 
2  Coldw.  309;  Pearson  v.  AVightman,  1  Mills  Const.  Rep.  336;  Billis  v. 
State,  2  McCord,  12.    But  see  Talmadge  v.  Northrop,  1  Root,  454. 

6  Taylor  v.  Greely,  3  Me.  204;  Briggs  v.  Byrd,  12  Ired.  L.  377;  Byars 
V.  Mt.  Vernon,  77  111.  467;  Kennedy  v.  Com.,  14  Bush,  340;  Romaiue  v. 
State,  7  Ind.  63:  Keener  v.  State,  18  Ga.  194;  Alexander  v.  Dunn,  5  Ind. 
122;  Fitzpatrick  v.  Harris,  16  B.  Mon.  561;  Tidewater  Canal  Co.  v. 
Archer,  9  Gill  &  J.  479;  Simpson  v.  Pitman,  13  Ohio,  365;  Com.  v. 
Flanagan,  7  Watts  &  S.  415;  Collier  v.  State,  20  Ark.  36;  Meyer  v.  State, 
19  Ark.  156;  Daniel  v.  Guy,  23  Ark.  50;  State  v.  Howard,  17  N.  U.  171, 


o40  OBJECTIONS  AFTKH  VKRDICT.  [CH.  XV. 

joct  to  challenge.^ 

Vital  objections  exist  against  the  contention  that  the  want 
of  knowledge  of  the  existence  of  a  cause  of  challenge  fur- 
nishes an  exception  to  the  requirement  of  the  law  that  all 
challenges  shall  be  made  before  the  juror  is  sworn.  As 
pointed  out  by  Catuon,  J.,  in  a  criminal  case,  it  would  be 
dangerous  to  admit  such  an  exception  :  "Of  this  want  of 
knowledge,"  said  he,  "  what  evidence  has  the  court?  The 
affidavit  of  a  convicted  felon — proof  always  to  be  had 
when  deemed  necessary."  '  The  temptation  to  commit  or 
suborn  perjury  would  in  general  be  too  strong  to  be  re- 
sisted, if  a  defeated  suitor  or  a  convicted  person  might  thus 
annul  the  verdict  of  a  jury.  Nor  could  our  jurisprudence 
tolerate  the  unseemly  spectacle  which  must  inevitably 
ensue,  that  of  putting  the  jury  on  trial  a  second  time  as  to 
their  qualifications  in  every  case,  as  a  matter  of  course. 

The  rule  generally  accepted  is,  that  a  new  trial  will  be 
■oranted  only  when  the  court,  in  the  exercise  of  a  sound  dis- 
cretion, deems  it   proper  under    the   circumstances.^      The 

IDS;  state  V.  Shelledj'.  S  Iowa.  477;  State  v.  Strauder,  11  W.  Va.  745; 
Brill  V.  State.  1  Tex.  App.  572:  Clough  v.  State.  7  Neb.  324;  State  v. 
Fiinck.  17  Iowa,  365;  McKiuney  v.  Simpson,  51  Iowa,  662;  McDonald 
V.  Beall.  55  Ga.  288;  Stewart  v.  Ewbank,  3  Iowa,  101;  Gregory  v.  Wells. 
Smith  (N.  H.)  239.  n;  Porter  v.  Greenough.  Smith  (N.  H.)  238,  n; 
Caldwell  v.  Caldwell.  Smith  (N.  H.)  239. 

1  State  V.  Davis,  80  N.  C.  412;  Amherst  v.  Iladley.  1  Pick.  38;  Wilder 
T.  State,  25  Ohio  St.  555;  Hogan  v.  State,  36  Wis.  226;  Meeks  v.  Stato. 
57  Ga.  329;  Walker  v.  Green.  3  Me.  215;  Rowland  v.  Gifford.  1  Pick.  43. 
note;  Fellows"  Case.  5  Me.  383;  Cook  v.  Castner.  9  Ctish.  266;  Blood- 
•worth  V.  Statr,  6  Baxt.  (Tenn.)  614;  Shobe  v.  Bell,  1  Rand.  39;  Har- 
■dcnburgh  v.  Crary,  15  How.  Pr.  307,  309;  State  v.  Harris,  30  La.  An.  90; 

Inited  States  v.  Baker.  3  Bened.  68. 

2  McClure  v.  State,  1  Yerg.  206,  219.  See  also  Gillespie  v.  State, 
8  Yerg.  507;  Calhoun  v.  State,  4  Hnmph.  477;  Meyer  v.  State,  19  Ark. 
156. 

'Woodward  v.  Dean.  113  Mass.  297.  298.  See  also  Kiiiniuutt  v.  Stock- 
^vell,  8  Cush.  73;  Davis  v.  Allen.  11  Pick.  466;  Eggleston  v.  Smiley,  17 
Johns.  133;  Meyer  v.  State.  19  Ark.  156;  State  v.  McDonald,  8  Oreg. 
113;  Seymour  v.  Deyo,  5  Cotw  289;  State  v.  Davis.  80  N.  C.  412,  414: 
State  V.  Boon,  80  N.  C.  461 ;  Clongh  v.  State,  7  Neb.  351 ;  Shea  v.  Law- 
rence, 1  Allen,  167;  State  v.  Madoil.  12  Fla.  151;  State  v.  Howard.  17 
:N'.  H.  171 ;  Cain  v.  Cain.  1  B.  Mon.  213:  Temple  v.  Snmner.  Smith  (N. 


§    302.]  INCOMPETENCY  OF  JUKORS.  341 

granting  of  new  trials,  it  lias  been  said,  does  not  depend 
upon  the  whim  or  caprice  of  the  judge,  but  upon  well-estab- 
lished and  fundamental  principles  of  law.^  There  are  facts 
in  every  case  to  guide  this  judicial  discretion.  In  the  class 
of  cases  under  discussion,  the  inquiry  should  be  whether 
the  party  alleging  the  objection  against  the  juror  has  exer- 
cised reasonable  diligence  in  ascertaining  the  qualifications 
of  the  jurors  who  passed  ui)on  his  case.-     \Yas  the  juror  in- 


H.)  226;  State  v.  Pike,  20  X.  H.  344.  On  amotion  in  arrest  of  judgment 
or  for  a  new  trial,  it  i.s  plain  that  a  party  cannot  be  heard  to  allege  par- 
tiality on  the  part  of  certain  jurors,  which,  if  existing  at  all,  was  in  fa- 
vor of  the  party  complaining.  Carew  v.  Howard,  1  Root,  323.  In  au 
early  criminal  case  in  Massachusetts,  the  court  granted  a  new  trial 
where  it  appeared  after  verdict  that  two  of  the  trial  jurors  had  beeu 
members  of  the  grand  jury  which  found  the  indictment.  Com.  v.  Hus- 
sey,  13  Mass.  221.  See  also  Hawkins  v.  Andrews,  39  Ga.  118.  But  iu 
other  cases  this  reason  has  been  held  to  be  insufficient.  State  v.  Turner, 
G  La.  An.  309;  Beck  v.  State,  20  Ohio  St.  228;  Franklin  v.  State,  2  Tex. 
App.  8;  State  v.  McDonald,  9  W.  Va.  456.  It  has  been  considered  that 
a  new  trial  should  be  awarded,  where  one  of  the  jurors  previous  to  the 
trial  had  made  a  trifling  wager  upon  the  result.  Essex  v.  McPherson, 
64111.  349.  But  see  McCausland  v.  McCausland,  1  Yeates,  372;  Booby 
v.  State,  4  Yerg.  111.  It  is  evident  that  an  objection  made  to  a  juror 
during  the  course  of  the  trial  is  entitled  to  greater  consideration  than  if 
postponed  until  after  verdict.  Dilworth  v.  Com.,  12  Gratt.  689;  Henry 
V.  Cuvillier,  3  Mart.  (N.  S.)  524. 

>■  Com.  V.  Flanagan,  7  Watts  &  S.  415,  423. 

-  Roseborough  v.  State,  43  Tex.  570;  Quinebaug  Bank  v.  Leavens,  2U 
Conn.  87;  Brown  v.  Lacrosse  Gas  Co.,  21  Wis.  51;  Steele  v.  Malony,  1 
Minn.  341  ;  Mt.  Desert  v.  Cranberry  Isles,  46  Me.  411 ;  Patterson  v. 
State,  70  Ind.  341;  Vennum  v.  Harwood,  6  111.  659;  Swarues  v.  Sitton, 
58  111,  155 ;  Walker  v.  Green,  3  Me.  215 ;  Glover  v.  Woolsey,  Dudley 
(Ga.)  85;  Fitzpatrick  v.  Harris,  16  B.  Mon.  561;  Franklin  v.  State,  2 
Tex.  App.  8;  McDonald  v.  Beall,  55  Ga.  288;  Koenig  v.  Bauer,  1 
Brewst.  304.  In  one  case  the  court  awarded  a  new  trial,  where  a  juror 
appeared  to  have  beeu  strongly  biased  against  the  defendant,  because  the 
facts  of  the  case  did  not  show  ••  gross  "  negligence  on  the  part  of  the  de- 
fendant in  not  ascertaining  this  cause  of  objection  to  the  juror  before 
trial.  Hanks  v.  State,  21  Tex.  526.  In  Lafayette,  etc.  R.  Co.  v.  New  Al- 
bany, etc.  R.  Co.,  13  Ind.  90,  the  motion  for  a  new  trial  was  founded 
upon  the  incapacity  of  a  juror  to  understand  the  English  language. 
This  the  court  granted,  the  juror's  ignorance  being  unknown  to  the  party 
against  whom  the  verdict  was  rendered,  until  after  the  trial.  "The 
party,"  said  Perkins,  J.,  '•  might  well  presume  that  the  officer  had  called 
a  juror  competent  in  this  particular."      But  see  Yauez  v.  State,  6  Tex. 


342  OBJECTIONS  AFTER  VERDICT.  [CH.  X\ . 

tcrrogatod  upon  the  voh-  dire  us  to  the  cause  of  challenge 
now  alleged?  If  not,  this  is  uniformly  regarded  as  a  lack 
of  diligence,  or,  in  the  language  of  some  courts,  as  a  waiver 
of  the  cause  of  challenged     But  the  most  important  consid- 

App.  42i»;  State  v.  Harris.  ;^0  La.  An.  DO;  Uiiitod  States  v.  Baker.  3 
Boned.  68.     Aiitf.  §  177. 

'  .TeffrioP  v.  Randall.  14  Mass.  205;  State  v.  Patrick,  3  Jones  L.  443; 
Tweedy  V.  Brijrgs.  31  Tex.  74;  State  v.  Qnarrel,  2  Bay  l.")0;  Gilbert  v. 
Kider.  Kirby.  ISO.  184;  Taylor  v.  Greely.  3  Me.  204;  Turner  v.  Uahn, 
1  Colo.  43;  Chase  v.  People.  40  111.  3.52;  Estep  v.  Watrous,  45  Ind.  140; 
Alexander  V.  Dmin,  5  Ind.  122;  Croy  v.  State,  32  Ind.  384;  Kingen  v. 
State,  4fi  Ind.  132;  Gillooley  v.  State,  58  Ind.  182;  State  v.  McLean,  21 
La.  An.  546;  State  v.  Parks,  21  La.  An.  251 ;  State  v.  Kennedy,  8  Rob. 
(La.)  590;  Simpson  v.  Pitman,  13  Ohio,  365;  Watts  v.  Ruth,  30  Ohio 
St.  32;  Beck  v.  State.  20  Ohio  St.  228;  Wilder  v.  State,  25  Ohio  St.  555; 
Kcnrick  v.  Repp.i/d.  23  Ohio  St.  333;  Bj'ars  v.  Mt.  Vernon,  77  111.  467; 
Keener  v.  State,  18  Ga.  194;  Collier  v.  State.  20  Ark.  36;  Daniel  v.  Guy, 
23  Ark.  50;  State  v.  Sholledy,  8  Iowa.  477;  Buie  v.  State,  1  Tex.  App. 
4.53;  Yanez  v.  State,  6  Tex.  App.  429;  Clough  v.  State,  7  Neb.  324;  State 
V.  Funek,  17 Iowa,  365;  McKinney  v.  Simpson,  51  Iowa,  662;  Stewart  v. 
Ewbank,  3  Iowa.  191.  Whether  the  juror  Avas  thus  examined  upon  the 
voir  dire,  is  a  mattei-  to  be  shown  by  the  record.  The  affidavit  of  the 
party  moving  for  the  new  trial  is  not  sufficient  to  establish  this  fact. 
Stewart  v.  Ewbank.  3  Iowa,  191;  State  v.  Shelledy,  8  Iowa,  447;  Shaw 
V.  State.  27  Tex.  750.  If  the  juror  answers  untruthfully,  for  the  jjurpose 
of  avoiding  a  challenge,  it  is  generally  i)roper  for  the  oonrt  to  grant  a 
new  trial,  upon  the  discover}' of  the  deception  after  verdict.  Seller.s  v. 
People.  4  111.  412;  Howerton  v.  State,  Meigs,  202;  Venuum  y.  ITarwood. 
6  111.  659;  Essex  v.  McPherson,  64111.  349;  Jefferies  v.  Randall,  14  Mass. 
205;  Cody  v.  State,  3  How.  (Miss.)  27;  Troxdale  v.  State,  9  Humph. 
411;  Sam  v.  State,  31  Miss,  480;  Busick.  v.  State,  19  Ohio,  198; 
Rice  V.  State,  16  Ind.  298:  State  v.  Kennedy.  8  Rob.  (La.)  590; 
Smith  V.  Ward,  2  Root,  302;  Lane  v.  Scoville.  16  Kan.  402;  State  v. 
Shelledy,  8  Iowa.  477;  Lamphier  v.  State,  70  Ind.  317;  Watts  v. 
Ruth,  30  Ohio  St.  32;  Bales  v.  State.  63  Ala,  30;  Cannon  v.  State,  57 
Miss.  147;  McGuffie  v.  State,  17  Ga.  497:  Childress  v.  Ford.  lOSmed.  it 
M.  25.  Mr.  Justice  Crompton  was  of  opinion  that,  even  if  a  prisoner  had 
been  purposely  misled  as  to  a  cause  of  challenge,  this  would  not  vitiate 
the  verdict  in  point  of  law,  "  though  it  would  be  matter  for  the  consid- 
eration of  a  court  in  a  civil  case,  in  exercising  their  discretion  as  to 
granting  a  new  trial  under  all  the  circumstances  of  the  case,  or  for  the 
advisers  of  the  Crown  in  the  exercise  of  the  prerogative  of  mercy."  Reg. 
v.  Mellor.  Dears.  &  Bell  C.  C.  468.  .509;  s.  c,  4  Jur.  (N.  S.)  214;  7  Cox 
C.  C.  4.54;  27  L.  J.  (M.  C.)  121.  See  also  Temple  v.  Sumner.  Smith  (X. 
H.)  226;  Schmidt  v.  Rose.  6  Mo.  App.  587.  .588;  State  v.  McDonald,  9 
W.  Va.  4.56;  Brennan  v.  State.  33  Tex.  266;  Frank  v.  State.  39  Miss.  705. 
But    if.  at   the  time    of    the   examination,  one    of    the   parties   or  iiis 


§   303.]  INCOMPETENCY  OF  JURORS.  343 

oration  is  whether  an  unjust  verdict  has  resulted  from  the 
presence  of  the  obnoxious  jurors  upon  the  panel  ;  if  not, 
it  would  l)e  idle  to  grant  a  new  trial,  which  would  properly 
be  productive  only  of  the  same  result.^ 

§  303.  Contiiuied  —  AV'aiver  of. —  We  have  previously 
seen  that,  if  any  rule  in  respect  of  the  impanelling  of 
jurors  is  definitely  settled,  it  is  that  a  party,  Avho  is  aware  of 
any  circumstance  affecting  the  competency  of  a  juror,  is 
bound  to  make  his  objection  by  way  of  challenge  before 
that  juror  is  sworn  ;  otherwise  he  will  be  held  to  have 
waived  it.- 

coimsel  is  aware  that  the  juror  has  testified  falsely,  and  makes 
no  objection  to  the  juror  until  after  verdict,  this  circumstance  cannot  be 
relied  upon  as  ground  for  a  new  trial.  Parker  v.  State,  55  Miss.  414. 
Jurors  are  not  required  to  know  or  to  surmise  that  something  more  is  in- 
tended than  is  fairlj'  expressed  by  the  terms  of  the  questions  put  to  them. 
Missouri,  etc.  R.  Co.  v.  Munkers,  11  Kan.  223;  Moore  v.  Cass,  10  Kan. 
2S8;United  States  v.  Smith,  1  Sawyer,  277,  282;  Swarnes  v.  Sitton,  58  111. 
155.  It  seems  to  make  no  difference  whether  the  answers  of  the  juror  are 
made  to  questions  by  the  court,  or  by  the  party  subsequently  alleging 
their  falsity.  Hudspeth  v.  Herston,  64  Ind.  133;  Wiggin  v.  Plumer,  31 
N.  H.  251.  It  has  been  held  that,  if  it  appear  after  verdict  that  a  juror 
testified  falsely  upon  the  roirdire,  he  dees  not  restore  his  competency  by 
making  an  affidavit  that  he  was  really  impartial  in  the  case,  and  that  he 
unwittingly  testified  to  the  contrary  of  the  facts.  Territory  v.  Kennedy,  3 
Mont.  520;  United  States  v.  ITpham,  2  Mont.  170;  Hudspeth  v.  Herston, 
64  Ind.  133.     But  the  soundness  of  this  view  may  be  doubted. 

iRex  V.  Hunt,  4  Barn.  &  Aid.  430,432 :  Williams  v.  Great  Western  R. 
Co.,  3  Hurl.  &  N.  869,  870;  s.c,  28  L.  J.  (Exch.)  2;  Trueblood  v.  State,  1 
Tex.  App.  650;  O'Mealy  v.  State.  1  Tex.  App.  ISO;  WHtner  v.  Hamlin 
12  Fla.  21 ;  Fiuiey  v.  Hayden,  3  A.  K.  Marsh.  330;  Bennett  v.  Matthews, 
40  How.  Pr.  428 ;  Zickefoose  v.  Kuykendall,  12  W.  Va.  23 ;  State  v.  Madoil, 
12  Fla.  151;  Hail  v.  Albro,  2  Disney,  147;  Eomaine  v.  State,  7  Ind.  63; 
Eggleston  v.  Smiley.  17  Johns.  133;  Cain  v.  Ingham,  7  Cow.  478; 
Hayes  v.  Thompson,  15  Abb.  Pr.  (N.  S.)  220;  State  v.  Turner,  6  La.  An. 
309;  McLellan  v.  Crofton,  6  Me.  307;  Tidewater  Canal  Co.  v.  Archer,  9 
Gill  &  J.  479;  Com.  v.  Flanagan,  7  Watts  &  S.  415;  State  v.  Howard,  17 
N.  H.  171,  198;  State  v.  Strauder,  11  W.  Va.  745;  Brill  v.  State,  1  Tex. 
App.  572;  Orme  v.  Pratt,  4  Cranch  C.  C.  124:  Magness  v.  State,  2  Coldw. 
309 ;  Hardenburgh  v.  Crary,  15  How.  Pr.  307, 309 ;  Bristow"s  Case,  15  Graft. 
648;  Com.  v.  Jones,  1  Leigh,  598;  Curran's  Case,  7  Graft.  619;  Greenup 
V.  Stoker,  8  111.  202;  Seymour  v.  Deyo,  5  Cow.  289;  Heath  v.  Com.,  1 
Rob.  (Va.)  735;  Wickersham  v.  People.  2  111.  129;  Presbury  v.  Com.,  9 
Dana,  203. 

2  Ante,^  275,  sub-sec.  2. 


344  OBJECTIONS  AFTER  VERDICT,  [CH,  XV  ^ 

There  is,  however,  some  difficulty,  mid  not  a  little  appar- 
ent in  stice,  in  saying  that  a  party  is  prcHuniod  to  ivaive 
every  possible  objection  to  a  juror  which  ho  omits  to  make 
at  the  time  of  the  impanelling.  How  can  a  party  waive  that 
which  he  knows  not  of?^  Nor  can  it  be  reasonably  ex- 
pected that  each  juror  should  be  probed  upon  the  voir  dire 
for  every  possible  cause  of  objection.  Nevertheless,  it  is 
essential  to  the  administration  of  justice  that  a  party  should 
not  have  the  same  rights,  after  verdict,  to  object  to  the 
competency  of  a  juror,  that  he  has  upon  the  impanelling. 
The  theory  of  waiver  therefore  should  be  abandoned.  It 
can  be  invoked  to  no  good  purpose,  and  is  productive  only 
of  confusion  and  seeming  injustice.  It  should  be  stated  as 
a  rule  of  law  that,  after  a  juror  is  sworn,  a  party  cannot 
object  to  him  as  a  matter  of  right,  because  every  reasonable 
facility  has  been  previously  offered  for  making  objections."^ 

The  theory  of  waiver,  just  noticed,  has  led  the  Supreme 
Court  of  Michigan  into  an  anomalous  position.  In  civil 
cases  they  hold  that  a  party  waives  objections  to  jurors  not 
taken  upon  the  inn)anelling,  whethei"  he  was  aware  of  such 
objections  or  not  ;  not  so  in  criminal  proceedings,  which  being 
in  invitum,  such  objections  cannot  be  a  sul)ject  of  waiver.^ 
"  The  doctrme,"  said  Christiancy,  J.,  "  rests  upon  assent  ; 
in  other  words,  when  reduced  to  its  final  analysis,  upon  con- 
tract." ■*  This  would  plainly  seem  to  be  a  reductio  ad  absur- 
dum,  and  a  conclusive  reason  for  rejecting  the  theory  alto- 
gether, instead  of  restricting  its  application  to  civil  cases. 
"  Waiver  or  acquiescence,"  said  the  Master  of  the  Rolls,  in 
Vyvyanw.  Vyvyan^'  "like  election,  presupposes  that  the 

1  Bristow's  Case,  15  Gratt.  648. 

2  iSTote  the  language  of  Lord  Tenteideu  in  Rex  v.  Sutton,  8  Barn.  & 
Cress.  417,  419. 

'  Compare  Johr  v.  People,  26  Mich.  427.  and  Ilill  v.  People,  16  Mich. 
351.  In  each  of  these  cases,  it  was  discovered,  after  verdict,  that  one  of 
the  jurors  was  an  alien.  The  incapacity  of  the  juror  was  held  to  have 
been  '•  waived  "  in  the  former  case,  and  not  in  the  latter.  See  also 
Smith  V.  School  Dist.,  40  Mich.  143. 

*  Hill  V.  People,  16  Mich.  351,  357. 

'  30  Beav.  65, 74. 


§   303.]  INCOMPETENCY  OF  JURORS.  345- 

persoa  to  be  bound  is  fully  cognizant  of  his  rights,  and  that, 
being  so,  he  neglects  to  enforce  them,  or  chooses  one  bene- 
fit instead  of  another,  either,  but  not  both  which  he  might 
claim." 

The  Supreme  Court  of  Wisconsni,  on  the  other  hand,, 
considers  the  theory  of  waiver  to  be  applicable  to  all  crim- 
inal cases  not  capital.^  "It  is  true,"  said  Paine,  J., 
"that,  in  favor  of  life,  the  prisoner  in  capital  cases  is^ 
held  not  to  waive  anything.  But  the  reason  of  the  rule 
does  not  exist  in  other  cases,  and  has  never  been  applied  by 
the  courts."^  Concerning  this  distinction  it  may  be  re- 
marked that  in  capital  cases,  above  all  others,  perjury  is  to 
be  feared  from  the  introduction  of  affidavits  impeaching  the 
competency  of  jurors.  Life  is  at  stake,  and  the  temptation 
of  friends  of  the  accused  to  commit  perjury,  or  to  enlarge 
upon  facts,  is  always  present,  and  often  irresistible.  Affi- 
davits imputing  to  a  juror  before  trial  such  expressions  as,. 
"  he  ought  to  be  hung  ;  "  "he's  bound  to  swing  ;  "  "he'll 
go  the  penitentiary,"  etc.,  are  commonly  made  and  uni- 
formly met  by  a  counter-affidavits  of  jurors  denying  the 
use  of  such  language.  It  is  impossible  to  avoid  the  conclu- 
sion that  justice  is  frequently  thwarted  by  the  court  giving 
too  ready  credence  to  such  statements.^ 

1  State  V.  Vogel,  22  Wis.  471 ;  Sehuiiiacker  v.  State,  5  Wis.  324. 

*  State  V.  Vogel,  siipra.  The  Illinois  court  took  this  view  in  two  early 
cases.  See  Nomaque  v.  People,  1  111.  109;  Guykowski  v.  People,  2  111. 
476.  But  it  was  later  abandoned.  See  People  v.  Scates,  4  111.  351,  353; 
Chase  v.  People,  40  111.  352. 

»  See,  for  exaiaple.  State  v.  Hopkins,  1  Bay,  372.  After  the  discharge 
of  the  jurors,  one  Hopkins,  convicted  of  pas.sing  counterfeit  money,  was 
brought  into  court  upon  tlie  last  day  of  the  term  for  sentence.  An  in- 
dicted horse  thief  (!)  now  made  an  affidavit  that  the  foreman  of  the 
jury,  which  found  the  defendant  guilty,  had  declared  to  him  in  conversa- 
tion respecting  the  prisoner,  that  "  he  had  come  from  home  to  hang 
every  damned  counterfeiting  rascal,  and  that  he  was  determined  to  hang 
Hopkins  at  all  events."  The  judge,  without  any  examination  of  the 
juror  impeached,  seems  to  have  winked  at  the  character  of  the  affiant; 
considered  that  it  raised  a  doubt,  at  least,  as  to  the  juror's  impartiality; 
that  he  ought  to  lean  on  the  merciful  side  and  give  the  prisoner  another 
chance  for  a  fair  trial.  In  a  note  we  read  that  the  prisoner  was  again 
ried  and  acquitted.     Courts  freq  uently  much  abuse  the  maxim,  mtius 


•34(5  OBJECTIONS  AFTER  VERDICT.  [CII.  XV. 

Where,  after  verdict  in  ii  capital  case,  a  juryman  is  found 
wanting  in  a  purely  legal  qualification,  provided  the  same 
does  not  go  to  impeach  his  integrity  or  natural  capacity, 
there  would  seem  to  be  no  reason  for  setting  aside  the  ver- 
dict, which  does  not  exist  in  every  other  case,  civil  or  crim- 
inal ;  and  hence  courts  generally  do  not  regard  capital  cases 
as  an  exception  to  the  rule.^ 

§  304.  Juror's  Aflitlavit  in  Support  of  liis  Competency. 
—  Where  a  motion  for  a  new  trial  is  grounded  upon  affida- 
vits impeaching  the  impartiality  of  any  member  of  the  jury 
by  whom  the  case  was  tried,  it  is  due  to  that  juror  and  to 
the  interests  of  justice,  that  he  be  confronted  with  the 
■charge  and  his  affidavit  be  taken,  denying  the  charge,  if  ho 
<'an.^  Unless  there  is  plain  evidence  of  injustice  done  to 
the  party  complaining,  the  verdict  should  be  allowed  to 
.stand. ^ 

■ext  in  mitiori  sensu  errara.  It  properly  applies  only  in  a  doubtful  case. 
The  language  of  Mr.  Justice  Crowder  on  one  occasion  is  vcy  apt  in  this 
connection :  "  As  to  anj'  supposed  tenderness  and  humanity  to  the 
prisoner,  in  giving  way  to  such  an  objection,"  said  he,  "  I  have  no  right 
to  be  tender  and  liunuuie  at  tlie  expense  of  the  law.**  Reg.  v.  Mellor. 
Dears.  &  Bell  C.  C.  4G8,  517. 

1  Ex  parte  Phillips.  10  Exch.  731,  732;  Amherst  v.  Iladley,  1  Pick.  38, 
40;  Wassum  v.  Feeney,  121  Mass.  93;  Davis  v.  People.  19  111.  74;  Chase 
v.  The  People,  40  111.  352;  Gillooley  v.  State,  58  Ind.  182;  Kingen  v. 
State,  46  Ind.  132;  Costly  v.  State,  19  Ga.  G14;  Davison  v.  People, 
90  111.  221. 

2  Anderson  v.  State.  14  Ga.  709;  Taylor  v.  Greely,  3  Me.  204;  State  v. 
Kingsljury.  58  Me.  238;  Nash  v.  State,  2  Tex.  App.  362.;  Davison  v. 
People,  90  111.  221;  Columbus  v.  Gnetchius,  7  Ga.  139;  Be  Bowman, 
7  Mo.  App.  508;  State  v.  McDonald,  9  W.  Va.  45G,  466;  Tenney  v. 
Evans,  13  N.  II.  462;  Woodward  v.  Eeavitt.  107  Mass.  453;  Kay  v.  State. 
15  Ga.  223;  Moncrief  v.  State,  59  Ga.  470;  Brinkley  v.  State.  58  Ga.  296; 
State  v.  Dumphey,  4  Minn.  439;  State  v.  Ayer,  23  N.  H.  301.  Contra, 
Vance  v.  Ilaslett,  4  Bibb,  191. 

Ramadge  v.  Ryan,  9  Bing.  333;  Davison  v.  People,  90  111.  221 ;  State 
V.  Hayden,  51  Vt.  296;  Mitchum  v.  State,  11  Ga.  615;  Anderson  v.  State, 
14  Ga.  709;  Ray  v.  State,  15  Ga.  223;  Mercer  v.  State,  17  Ga.  146;  Cur- 
lau's  Case.  7  Gratt.  619;  Ash  v.  State,  56  Ga.  583;  Moughon  v.  State, 
59  Ga.  308;  Lovett  v.  State,  60  Ga.  257;  Morrison  v.  McKinnon.  12  Fla. 
552;  lie  Bowman,  7  Mo.  App.  508;  Schmidt  v.  Rose,  6  Mo.  App.  587, 
5S8;  Meyer  v.  State,  19  Ark.  156;  Lawrence  v.  Collier,  1  Cal.  37;  Peo- 
e    V.  PI  '  ..mer,  9  Cal.  298;  State  v.  Shay.  30  La.  An.  114;  AVallace  v. 


§   305.]  NEW  TRIALS  NOT  READILY  GRANTED.  347 

Where  the  evidence  as  to  tlie  supposed  disqualification  of 
ji  juror  is  conflicting,  the  decision  of  the  court  below  refus- 
ing a  new  trial  will  not  be  disturbed  on  appeal.^  Although 
the  juror  is  not  brought  in  to  contradict  an  affidavit  impeach- 
ing his  competency,  if  his  testimony  upon  the  imir  dire 
covers  the  charges  made  in  the  affidavit,  it  is  still  a 
-case  of  oath  against  oath  ;  therefore  the  court  will  be  slow 
to  impute  perjur}'  to  the  juror,  or  gross  inattention  as  to 
the  effect  of  his  testimony.^ 

§  305.  New  Trials  not  readily  8:i*anted. —  From  the 
foregoing  sections  it  is  obvious  that  motions  for  new  trial 
ought  to  be  received  with  great  caution,  as  tending  very 
much  to  the  introduction  of  perjury.^  Moreover,  reasons 
of  convenience  urge  this  course  ;  otherwise,  as  soon  as  a  ver- 
dict were  rendered,  the  trial  of  the  jurors  would  begin,*  In 
criminal  cases  it  has  been  said  that  justice  to  accused  per- 
sons demands  that  uniformly  the  request  should  be  denied. 
The  reason  for  this  paradoxical  statement  appears  from 
the  language  of  Lord  Tenterden  on  one  occasion.  "We. 
ought,"  said  he,  "  to  be  very  careful  in  giving  way  to  such 
an  application  ;  for  if  we  must  grant  a  new  trial  at  the  in- 
stance of  a  defendant  after  conviction,  we  must  also  do  it 
$d  the  instance  of  a  prosecutor  when  there  has   been  an  ac- 

Columbia,  48  Me.  436;  Stewart  v.  State,  58  Ga.  577;  Simnis  v.  State, 
8  Tex.  App.  2.30;  Thrall  v.  Lincoln.  28  Vt.  356;  Parkinson  v.  Parker, 
48  Iowa.  667;  Nadenbousch  v.  Sharer.  4  ^\ .  Va.  203;  O'Shields  v. 
State,  55  Ga.  6!)6;  Mitchell  v.  State,  22  Ga.  211;  Brinkley  v.  State,  58  Ga. 
296;  State  v.  Diimphey,  4  Minn.  438;  Stewart  v.  Ewbank.  3  Iowa,  191 ; 
State  V.  Pike.  20  N".  H.  344;  State  v.  Ayer.  23  N.  H.  301;  Dole  v. 
Erskine,  37  N.  II.  317;  Dum.as  v.  State,  63  Ga.  600. 

'Miami  Valley  Furnitnre  Co.  v.  Wesler,  47  Ind.  05;  Clfm  v.  Stat^. 
33  Ind.  418;  Harding  v.  Whitney,  40  Ind.  379;  Holloway  v.  State,  53  Ind. 
554;  Romaine  v.  State.  7  Ind.  63;  State  v.  Bancroft.  22  Kan.  170;  Epps 
T.  State,  19  Ga.  102, 122;  Costly  v.  State,  19  Ga.  614. 

2  Nash  V.  State,  2  Tex.  App.  362;  State  v.  McDonald,  9  W.  Va.  456; 
Hudgins  v.  State,  61  Ga.  182;  Com.  v.  Hughes,  11  Phila.  430.  But  see 
Reddle  v.  State,  3  Heisk.  401;  Henrie  v.  State,  41  Tex.  573;  Fitzgerald 
V.  People,  1  Colo.  56. 

3  Per  Tilghman,  C.  J.,  in  Moore  v.  Philadelphia  Bank,  5  Serg.  &  R. 
41 ,  42. 

*  Per  Rogers.  J.,  in  Com.  v.  Flanagan.  7  Watts  &  S.  415.  422. 


348,'  OBJECTIONS  AFTER  VERDICT.  [ciI.   XV, 

(juittal.^  But  tliiti  observation  would  not  hold  good  in  the 
United  States,  whore  the  State  can  have  no  new  trial  in  any 
case. 

iRex  V.  Sutton,  8  Barn.  &  Ores?.  417,  419;  Wheliui  v.  Reg.,  28  Up. 
Can.  Q.  B.  2,  63,  177,  17S;  Reg.  v.  Mellor,  Dears.  &  Bell  C.  C.  468,  517, 
per  Willes,  J. ;  Ibid.,  p.  523,  per  Byles,  J. 


TITLE  II. 


OF  THE  CUSTODY  AND  CONDUCT  OF  TRIAL  JURIES. 


CHAPTER    XVI. 


OF  THE  CUSTODY  AND  SEPARATION  OF  .JURIES. 

:*:eCT10N. 

310.     Custody  of  .Jurors  under  the  old  Law. 

811.    Distinction    between    Power  to  permit  Jury   to   separate  and 

Power  to  adjourn. 
312.     Distinction   between   Power   to  permit  Jury  to    separate   and 

Power  to  discliarge  them. 
i313.     Separation  not  always  Ground  for  New  Trial. 

314.  Custody  of  the  Jury  in  Civil  Cases. 

315.  Separation  in  Civil  Cases  not  Ground  for  a  New  Tilal. 

316.  Unless  there  are  other  Circumstances  of  Abuse. 

317.  Nor  in  Cases  of  Misdemeanor. 

318.  Nor  in  some  States  in  Cases  of  Felony. 

(1.)  In  Connecticut. 
(2.)  In  Illinois. 
(3.)  In  Indiana. 
(4.)  In  Iowa. 
(5.)  In  Minnesota. 
(6.)  In  Missouri. 
(7.)  In  New  York. 
(8.)  In  Ohio. 
(9.)  In  Texas. 
(10.)  In  Wisconsin. 
31!).     The  true  Rule  otherwise  in  Capital  Felonies. 

(1.)  General  Views — Constitutional  Obligations. 
(2.)  Rule  in  Mississippi. 

320.  Rule'does  not  extend  to  Absolute  Coutin':'ment  and  Isolation. 

321.  May^separate  in  Charge  of  Swor    Officer. 


'.ibO  CUSTODY  AND  SEPARATION  OF  JURIES.         [CH.    \VI. 

32-2.     But  not  in  Charge  of  an  Unsworn  Otfii-er. 

323.  What  OHioer    sworn    to    attend    them — Sheriff,    Constable    or 

Coroner. 

324.  Otheer  Incompetent  by  Reason  of  special  Circumstances. 

325.  Personal   Custody   of    a    .Juror  by   the  Judge  —  ilis  Personal 

Authority  over  the  Jury  during  Recess. 

326.  Form  of  the  Oath  of  the  Ollicer. 

327.  What  the  Record  should  show. 

328.  Separation  creates  a  Presumption  against  Verdict. 

329.  Distinction  between  Separation  with,  and  without  Permission  of 

the  Court. 

330.  Where  the  Separating  Juror  is  attended  by  the  proper  Officer. 

331.  Distinction   in   tliis  regard    between    Capital   and   Xon-Ca])iUil 

Felonies. 

332.  Distinctions  with  reference  to  the  Stage  of  the  Trial  at  whicii  a 

Separation  will  yitiate. 

(1.)  Separation  before  the  Jury  is  charged  with  the  Prisoner. 
(2.)  Separation  before  the  Jury  has  retired  to  deliberate. 

333.  Returning  Sealed  Verdicts  in  Civil  Cases. 

334.  Returning  Sealed  Verdicts  in  Ca.ses  of  Felony. 

335.  Dangers  of  this  Practice  —  Feigned  or  Altered  Verdicts. 

336.  Amending  Sealed  Verdicts. 

337.  "What  if  a  Juror  dissents  from  a  Sealed  Verdict. 

338.  Delivery  and  Reception  of  Verdicts. 

339.  Consent  of  the  Unsuccessful  Party  or  Prisoner. 

340.  Instances  where  a  New  Trial  was  Refused. 

(1.)  In  Capital  Cases. 

(2.)  In  Cases  of  Felony  not  Capital. 

341.  Instances  where  a  Xew  Trial  was  granted. 

(1.)  In  Capital  Cases. 

(2.)   In  Cases  of  Felouj'  not  Capital. 

§  310.  Custody  of  Jurors  under  the  old  Law. —  By  th(^ 
ancient  common  law  jurors  were  kept  together  as  pris- 
oners of  the  court,  until  they  had  agreed  upon  their  verdict.^ 
The  trials  of  causes  lasted  but  a  single  day,  and  the  power 
of  the  court  to  adjourn  from  day  to  day,  to  give  juror.s 
opportunity  for  rest  and  refreshment,  was  doubted  or 
denied.  But  in  later  times,  when  justice  came  to  be  admin- 
istered in  a  less  summary  manner,  so  that  it  was  found 
necessary  in  some  cases  to  protract  the  trial  for  several  days, 
the  old  rule  yielded  to  necessity,  and  the  jurors  were  per- 

'  When  a  jury  are  charged,  they  are,  as  it  were,  prisoners  until  they 
are  discharged."  Banister,  J.,  in  Bishop  of  N.  v.  Earl  of  Kent,  Trin. 
T.,  14  Hen.  VII.,  c.  29. 


§311.]  POWER  TO  ADJOURN.  351 

tnitted  to  retire  from  the  bar  of  the  court  for  needed  rest 
and  refreshment,  under  such  rules  as  the  court  saw  tit  to 
make  to  prevent  them  from  being  tampered  with.^  They 
were  not  allowed,  in  cases  of  treason  or  felony,  to  separate, 
pending  the  recesses  of  the  court  for  these  purposes,  to  go 
to  their  homes,  or  to  mingle  with  the  general  public  ;  i)ut, 
according  to  a  precedent  set  by  Lord  Kenyon,  they  were 
placed  in  charge  of  officers  who  Acre  sworn  "  well  and  truly 
to  keep  the  jury,  and  neither  to  speak  to  them  themselves, 
nor  to  suffer  any  other  person  to  speak  to  them,  touching 
any  matter  relating  to  this  trial."  ^  This  rule  of  practice 
was  transplanted  into  this  country,  and  the  form  of  the 
oath  thus  prescribed  has  in  some  States  been  enacted  by 
statute.^ 

§  311.  Distinction  between  Power  to  permit  Jury  to 
separate  and  Power  to  adjourn.  —  But  while  there  is,  in 
many  cases,  an  absolute  necessity  of  adjourning  for  refresh- 
ment and  repose,  it  is  seldom  that  a  necessity  arises  for 
permitting  the  jury  to  disperse, —  so  seldom  indeed,  that  no 
great  inconvenience  to  public  justice  would  arise  if  the  dis- 
persion of  the  jury,  even  under  necessity,  were  held  sufficient 
to  work  a  mistrial.  There  is,  therefore,  no  propriety  what- 
ever, in  blending  together  the  two  questions  of  the  power 
to  adjourn  and  the  power  to  permit  the  jury  to  separate,  as 
some  of  the  courts  have  done.  We  believe  the  power  of 
the  judge  to  adjourn  the  proceedings  from  day  to  day  is 
now  universally  conceded  ;  his  power  to  permit  the  jury  to 
separate,  is  not. 

1  On  the  trials  of  Hardy,  HorneTooke,  and  Thelwall,for  high  treason, 
which  took  place  in  the  Old  Bailey  in  1794,  this  question  was  much  dis- 
cussed; and  the  conclusion  of  the  judges  was,  that  they  had  power  to 
adjourn  the  tiial  from  day  to  day,  so  as  to  give  all  concerned  in  it 
opportunity  for  repose  and  refreshment.  The  exercise  of  this  power 
was  put  on  the  ground  of  necessity,  and  the  case  was  regarded  as  one 
where  the  old  law  must  be  relaxed  out  of  the  necessity  of  the  case.  See, 
for  instance,  Hardy's  Case,  24  Howell's  State  Trials,  414. 

■''  The  King  v.  Stone,  6  Term  Eep.  527. 

*  See,  for  instance,  the  oath  prescribed  by  the  statute  of  Missouri  in 
trials  for  felony.     1  Rev.  Stats.  Mo.  1879,  §  1910. 


v5r)2  CUSTODY  AND  SEPAKATION  OF  .Il'UlES.         [CH.  XVI. 

§  312.  Distinction  l)ot>veon  Power  to  permit  Jury  to 
Soi>arato  and  l*oAv<'r  to  discharge  them. —  The  subject  is 
further  C()nii)lie:iled  in  .some  eases  bv  confusing  it  with  the 
<juestion  of  the  power  of  the  court,  in  ii  criminal  case,  to 
ilischai'ge  the  jurv  before  they  have  agreed  u[)on  tlieir  ver- 
dict. When  a  prisoner  has  been  arraigned  and  tried  upon 
a  valid  indictment,  he  is  entitled  to  the  verdict  of  the  jury 
before  they  are  discliarged  ;  for  it  would  be  the  greatest 
grievance  that  a  man's  life,  or  liberty,  should  be  made  the 
experiment  of  successive  juries,  and  such  a  thing  is  forbid- 
den l)y  the  constitution  of  the  United  States,  and  by  the 
<-()nstitutions  of  all  the  States.  This  right,  however,  is  not 
■of  so  strict  a  nature  as  not  to  yield  to  imperious  necessity. 
But  it  is  Avell  settled  law\  that  the  discharge  of  a  jury  in  a 
<riminal  case,  upon  a  valid  indictment,  not  called  for  by 
imperious  necessity,  and  without  the  consent  of  the  defend- 
ant, operates  as  an  ac(|uittal.^  It  is  equally  well  established 
that  such  a  discharge,  with  the  consent  of  the  defendant,  is 
not  a  V)ar  to  another  trial  for  the  same  offense  i"^  although, 
ns  elsewhere  shown,  it  has  frequently  been  held,  that  a  separa- 
tion of  a  jury,  in  a  criminal  case,  even  with  the  consent  of 
the  defendant,  is  ground  for  a  new  trial. ^  The  modern  doc- 
trine, also,  is  that  irregularities  in  criminal  trials,  whereby 
a  hiwful  verdict  is  prevented,  produce  a  mistrial,  and  are  no 
bar  to  another  trial  of  the  prisoner  for  the  same  offense. 
This  applies  to  the  case  where  the  jury,  before  rendering 
tlieir  verdict,  have  separated  without  lawful  authority.*  It 
is  o])vious  that  this  must  be  so  ;  otherwise  it  would  be  in  the 
power  of  a  single  juror,  by  absconding  before  verdict,  to 
j)roduce  a  discharge  of  the  prisoner.  The  rule  has  been 
held  of  equal  application  where  the  jury  were  discharged 
by  an  officer  who  had  no  })ower  to  do  so,  such  a  discharge 
being  merely  equivalent  to  an  unlawful  separation.  Thus, 
where  the  presiding  judge  of  the  Court  of  Oyer  and  Ter- 

'  McCorkle  v.  State,  14  Iiid.  40;  Com.  v.  Cook,  6  Serg.  &  R.  577. 
2  Case  of  tlie  two  Kii)loclis,  Foster.  22;  Com.  v.  Cook,  supra. 
•■'  Post,  §  339. 
*  Williams  v.  State.  45  Ala.  57;  Wvatt  v.  State.  1  Blaekf.  257. 


'^    213.]       SEPAUATION  NOT  GROUND  FOR  NEW  TRIAL.  353 

miner,  who,  in  the  absence  of  his  associates,  had  power  to 
do  no  other  act  touching  the  business  of  the  court  than  to 
take  recognizances  and  bail,  discharged  a  jury  in  a  case  of 
fch)ny,  in  the  absence  of  his  associates,  it  was  held  no  bar 
to  a  new  trial. ^ 

§  313.  Separation  not  always  Ground  for  New  Trial. — 
But  in  the  earlier  periods  of  our  history,  and  in  some  sec- 
tions of  the  country  at  the  present  time,  public  accommoda- 
tions have  been  so  inadequate  at  the  places  of  holding  courts 
that  it  has  been  found  extremely  difficult,  and  sometimes 
wholly  impossible,  to  keep  jurors  together  and  entirely 
isolated  from  the  public,  pending  these  adjournments  or 
during  their  deliberations.  Hence  another  rule  has  sprung 
up,  which,  in  some  of  the  States,  is  common  to  all  cases,  in 
others  not  admitted  in  capital  cases,  and  in  others  not  admit- 
ted in  an}^  cases  of  felony ;  and  it  is  this :  that  the  mere 
fact  that  jurors  have  separated  from  each  other,  or  from  the 
officer  having  them  in  charge  during  adjournments  of  the 
-court,  or  pending  their  deliberations,  is  not  ground  for  a 
new  trial.  Something  more  must  be  shown,  sufficient  to 
-cast  a  reasonable  suspicion  upon  the  purity  of  their  verdict.^ 
This  rule  is  subject  to  qualifications  which  will  be  explained 
hereafter,  chief  among  which  is  this :  that  an  unexplained 
separation,  in  cases  where  the  jury  are  required  by  law  or 
by  practice  to  be  kept  together,  creates  a  presumption  against 


1  People  V.  Eeagle,  60  Barb.  527,  544.  But  see,  contra^  State  v.  Gar- 
rigues,  1  Hayw.  241.  Tlie  effect  of  a  discharge  of  the  jury  upon  the 
rights  of  the  prisoner  is  a  branch  of  criminal  procedure,  which  is  not 
within  the  purview  of  this  work.  It  will  not,  therefore,  be  discussed 
here. 

2  Rex  V.  Kinnear,  2  Barn.  &  Aid.  462;  Rex  v.  Woolf,  1  Chit. 
Kep.  401;  Eaglaud  v.  Wills,  6  Leigh,  1;  Burns  v.  Paine,  8  Tex. 
159;  Brandin  v.  Grannis,  1  Conn.  402;  State  v.  O'Brien,  7  E.  I.  336; 
Berry  v.  State,  10  Ga.  511,  524;  Nelson  v.  State,  32  Tex.  71;  State  v. 
Lytle,  5  Ired.  L.  58,  62:  Wakefield  v.  State,  41  Tex.  556;  Jack  v.  State,  26 
Tex.  1;  State  v.  Turner,  25  La.  An,  573;  State  v.  Madoil,  12  Fla.  151 ; 
State  V.  Fox,  Ga.  Dec.,  pt.  1,  p.  35;  Heiser  v.  Van  Dyke,  27  Iowa,  359; 
Cook  V.  Walters,  4  Iowa,  72;  Miller  v.  Mabon,  6  Iowa,  456;  Smith  v. 
Thompson,!  Cow.  221;  Stutsman  v.  Barringer,  16  Ind.363;  Porter  v. 
State,  2  Ind.  435;  Edrington  v.  Kiger,  4  Tex.  89;  State  v.  Igo,  21  Mo. 

(23) 


354  CUSTODY  AND  SEPARATION  OF  JURORS.        [CH.  XVI.- 

tho  inlo£]!;rity  of  the  verdict,  such  as  culls  for  the  gnintiiig 
of  a  now  Irial.^ 

§  314.  Custody  of  the  Jury  in  Civil  Cases. — It  is  not  tlio 
general  practice  in  this  country  to  isolate  jurors  in  civil  cases 
from  the  rest  of  the  public  during  the  necessary  adjourn- 
ments which  take  place  in  the  progress  of  the  trial.  On  the 
contrary,  they  are  permitted  to  return  to  their  homes  at 
niglit  and  to  mingle  freely  with  the  public,  after  receiving 
an  admonition  from  the  bench  not  to  converse  with  any  one, 
nor  to  receive  communications  from  any  one,  touching  the 
cause  on  trial.  In  these  cases  they  arc  not  subjected  to  any 
restraint  until  they  have  received  the  charge  of  the  judge,^ 
and  have  retired  to  consider  of  their  verdict,  when,  regu- 
larly, they  are  to  be  kept  together  and  prevented  from 
communicating  with  persons  not  of  the  jury,  until  they  have 
agreed  upon  their  verdict.  But  even  then,  where  their 
deliberations  are  protracted,  or  where,  from  the  hour  of 
adjournment  or  other  circumstance  it  seems  necessary,  it  is 
believed  to  be  within  the  discretion  of  the  judge  to  allow 
them  to  separate  for  needed  rest  or  refreshment  before 
making  up  their  verdict.^  For  it  would  be  an  absurd 
restraint  to  prevent  jurors,  during  the  adjournments  of  a 
protracted  trial,  to  separate  and  mingle  freely  with  the 
public,  and  then  to  imprison  them  after  its  close  until  they 
should  have  agreed  upon  their  verdict.  Persons  known  to 
be  members  of  the  jury  would  not  be  less  likely  to  be 
approached  improperly  after  the  termination  of  trial  than 
during  its  progress.     Courts  have,  therefore,  in  civil  cases. 


459;  Wliitney  v.  State,  8  Mo.  165;  State  v.  Harlow,  21  Mo.  44G;  State  v. 
Mix,  15  Mo.  153;  Crane  v.  Sayre,  6  N.  J.  L.  110.  But  see  Rev.  Stats. 
Mo.  1870,  §  19G6.  The  rule  has  been  laid  down  in  the  following  cases, 
chiefly  capital :  Adams  v.  Peoi)le,  47  111.  37G;  Keins  v.  People,  30  111.  256, 
273;  People  v.  Douglass,  4  Cow.  26,  38;  State  v.  Babcock,  1  Conn.  401 ; 
Coker  v.  State,  20  Ark.  53 ;  Bilanski  v.  State,  3  Minn.  427,  431 ;  State  v. 
Miller,  1  Dev.  &  B.  500,  509;  People  v.  Bonney,  19  Cal.  426;  State  v. 
Branuon,  45  Mo.  329;  State  v.  Barton,  19  Mo.  227;  Caw  v.  People,  3 
>feb.  357;  State  v.  Harris,  12  Nev.  414. 

>  See  ivfra,  §  328. 

2  Stancell  v.  Kenan,  33  Ga.  56. 


§   315.]  IN  CIVIL  CASES.  355 

not  only  exercised  a  sound  discretion  in  regard  to  the  disposi- 
tion of  the  jury  pending  their  deliberations,  but  it  has  even 
been  held  that  a  statute,^  reciuiring  them  to  be  confined 
under  the  care  of  an  officer  until  they  shall  have  agreed  upon 
their  verdict,  or  until  they  shall  have  been  discharged  l)y 
the  court,  is  directory  merely,  in  its  application  to  civil 
cases. ^ 

■  §  315.  Sepai'ation  in  Civil  Cases  not  Ground  for  new 
Trial. — It  follows,  almost  as  a  necessary  conclusion,  that  the 
fact  that  the  jury  in  a  civil  case  have  separated  without 
leave  of  the  court,  after  the  cause  has  been  committed  to 
them,  and  before  they  have  agreed  upon  their  verdict,  is 
not,  as  mere  matter  of  law,  ground  for  a  new  trial ;  nor 
will  a  new  trial  be  <>;ranted  in  such  a  case  unless  the  facts 
touching  the  separation  are  such  as  to  raise  reasonable  sus- 
picions of  abuse.*  If  such  a  rule  will  hold  as  to  a  general 
dispersion  of  the  jury,  it  will  follow,  for  stronger  reasons, 
that  the  temporary  absence  of  a  single  juror  from  the  jury 
room,  or  from  his  fellows,  through  a  mistake  of  duty,  will 
not  afford  ground  for  disturbing  the  verdict,  unless  there  is 
proof  of  other  misconduct  on  his  part,  or  of  improper 
attempts  to  influence  his  vote  as  a  juror ;  though  it  may  be 
a  contempt  of  court  which  will  subject  him  to  punishment.^ 

i  Comp.  Stats.  Vt.  222,  §  23. 

2  Downer  v.  Baxter,  30  Vt.  467,  474. 

3  Smith  V.  Thompson,  1  Cow.  221 ;  Brandiu  v.  Grannis,  1  Conn.  40-', 
note;  Downer  v.  Baxter,  30  Vt.  467;  Evans  v.  Foss,  49  X.  H.  490;  An- 
thony V.  Smith,  4  Bosw.  503;  Pulaski  v.  Ward,  2  Rich.  L.  119;  Morrow 
V.  Comrs.,  21  Kan.  484,  516;  Eich  v.  Taylor,  20  Minn.  378;  Wright  v. 
Burchfield,  3  Ohio,  54;  Armleder  v.  Lieberman,  33  Ohio  St.  77. 

■'Milo  V.  Gardiner,  41  Me.  549;  Perldns  v.  Ermel,  2  Kan.  325;  Burrill 
V.  Phillips,  1  Gall.  360;  Alexander  v.  Dunn,  5  Ind.  122,  125;  Graves  v. 
Monet,  7  Smed.  &.  M.  45;  Oram  v.  Bishop,  12  N.  J.  L.  153.  la  an  early 
case  in  Mississippi,  it  was  held  that  a  separation  of  the  jury,  after  re- 
ceiving the  charge  of  the  court,  and  before  rendering  their  verdict, 
would,  as  matter  of  law,  even  in  a  civil  case,  avoid  their  verdict;  and 
that  this  would  be  so,  although  a  sworn  constable  may  have  attended 
the  separating  juror,  if  the  separation  took  place  without  leave  of  the 
court.  Offit  v.  Vick,  Walker  99.  So,  in  a  civil  case  in  Virginia,  the 
jury,  after  retiring  from  the  bar,  and  before  they  had  rendered  their 
verdict,  left  the  jury-room,  and  dispersed  through  the  court-yard,  during 


356  CUSTODY  AND  SEPARATION  OF  JURORS.       [CH.  XVI. 

When,  therefore,  in  the  trial  of  a  civil  case,  a  juror  left  his 
seat  for  a  short  time  durinijthc  trial,  without  the  knowledare 
•of  the  court  or  of  the  pai'ties,  but  no  testimony  was  given 
d urine;  his  absence,  and  he  held  communications  with  no 
one  on  the  subject  of  the  case,  it  was  held  that,  though  such 
•conduct  was  a  contempt  of  court,  yet  it  would  not  avoid  the 
verdict.^  So  where,  on  a  motion  for  a  new  trial  in  a  civil 
■case,  there  was  an  affidavit  that  one  of  the  jurors  was  at 
home  at  work,  and  that  he  accounted  for  his  absence  from 
the  jur}^  by  sa^nng  that  the  matter  in  controversy  between 
the  parties  was  being  investigated  by  a  committee  of  the 
jury,  this  was  held  entitled  to  no  consideration,  and  a  new 
trial  was  refused.^ 

§  310.  Unless  there  are  other  Circumstances  of  Abuse. 
—  But  this  rule  does  not  apply  to  cases  where  the  separation 
was  attended  b}'  other  circumstances  of  misconduct.^  Thus, 
in  a  civil  case,  the  jury,  after  they  had  retired  to  consider  of 
their  verdict,  forcibly  left  the  room  against  the  will  of  the 
■constable.  One  of  them  actually  absconded  and  retired  to 
his  own  house,  and  two  others  were  found  in  the  public 
road,  and  could  not  be  gotten  to  return  until  they  were 
actually  seized  and  taken  back  by  the  constable.  The  court, 
■while  admitting  that  small  irregularities  in  a  jury,  such  as 
taking  a  drink  of  liquor,  unless  it  be  by  the  procurement  or  at 
the  instance  of  the  prevailing  party,  is  not  sufficient  to  set 
aside  a  verdict,  said  :  "  Conduct  like  this  is  too  gross  to  be 
tolerated.  It  is  such  a  deviation  from  duty,  decency  and 
order,  as  to  impeach  the  motives,  as  well  as  the  verdict,  of  any 
jury;  and,  therefore,  let  the  judgment  be  reversed."*  So, 
where  the  jury  in  a  civil  case,  about  eleven  o'clock  at  night, 

a  temporary  recess  of  the  coui-t.  Thej^  afterwards  rendered  a  verdict  for 
tlie  defendant.  It  was  held  that  this  verdict  must,  for  this  reason,  be  set 
aside.  Howie  v.  Dnnn,  1  Leigh,  4.55.  We  apprehend  that  these  cases 
are  not  law.  They  are  certainly  out  of  line  with  nearly  all  the  cases  on 
the  subject. 

1  Ex  parte  Hill,  3  Cow.  3.55. 

2  Edrington  v.  Kiger.  4  Tex.  89. 

3  Sec  Davis  v.  State.  35  Ind.  496. 

*  Shepherd  v.  Baylor,  5  N.  J.  L.  827. 


§  318.]  IN  CASES  OF  MISDEMEANOR.  357 

induced  the  officer  who  had  them  in  charge  to  permit  them 
to  go  home,  by  pretending  to  deliver  to  him  a  sealed  verdict, 
but  returned  in  the  morning  and  made  up  and  delivered 
their  verdict  and  returned  it  into  court,  a  new  trial  was 
granted.^ 

§  317.  Xor  in  Cases  of  Misdemeanor.  —  Whether  the 
jury  should  or  should  not  be  permitted  to  separate  before 
verdict,  in  cases  of  misdemeanor,  is  a  matter  of  discretion 
with  the  judge.'^  The  fact  that  the  jury  separate  pending 
adjournments  of  the  court,  is  no  ground  for  a  new  trial,  in 
the  absence  of  circumstances  which  raise  a  suspicion  of  im- 
proper communications  with  them. ^  The  true  rule  in  such 
cases  is,  that  it  is  left  to  the  discretion  of  the  judge  to  say 
whether  the  jury  are  to  be  permitted  to  separate  or  not.  If, 
in  his  judgment,  a  separation  is  likely  to  be  detrimental  to 
the  ends  of  justice,  he  will  not  permit  it  to  take  place  ;  *  and, 
of  course,  a  separation  under  such  circumstances,  contrary 
to  the  orders  of  the  court,  would  be  in  this  country,  ground 
for  a  new  trial.  It  is,  also,  competent  for  the  judge  to  per- 
mit the  jury  to  seal  up  their  verdict,  and  then  separate  and 
return  their  verdict  in  court  on  its   re-assembling.'^ 

§  318.  Xorin  some  States  in  Cases  of  Felony. —  In  some 
of  the  States  this  rule  has  been  extended  to  prosecutions 
for  felony,  and  the  judges  have  exercised  the  discretionary 
power  of  discharging  the  jury  upon  the  adjournments  of  the 
court  from  day  to  day,*^  even  in  capital  cases  ;  ^  or,  in  such 
a  case,  of  allowing  a  single  juror  to  leave  the  box  for  a 
time  while  the  trial  is  in  progress,  the  proceedings  being,  of 
course,  suspended  to  await  his  return.^     And,  correspond- 

1  Short  V.  West,  30  Ind.  367. 

2  Rex  V.  Woolf,  1  Chit.  R.  401;  Goode  v.  State,  2  Tex.  App.  5-20; 
Caunou  v.  State,  3  Tex.  32. 

3  Rex  V.  Kimiear,  2  Barn.  &  Aid.  402. 

*  Ibid.,  per  Best,  J. 

*  Com.  V.  Heller,  5  Phila.,  123,  Quarter  Sessions  of  Schuylkill  Co.,  Pa., 
opinion  hy  Parry,  P.  J.  In  this  decision,  tliongh  not  made  by  the  court 
of  last  resort,  the  subject  was  very  well  considered. 

6  Berry  v.  State,  10  Ga.  511. 

'  State  V.  Anderson,  2  Bailey,  5G5;  Bilansky  v.  State,  3  Minn.  427. 

**  State  V.  McElmurray,  3  Strobh.  33. 


o')8  CUSTODY  AND  SEPAKATION  OF  JUROKS.        [CII.  XVI. 

ini;  (o  this,  we  Hiul  th;il  some  oourls  Imve  so  far  relaxed  the 
rule  of  the  coiiniion  law  as  to  hold  that  a  separation  of  the 
jury  in  cases  of  felony,  even  where  there  is  no  necessity  foi" 
it,  is  no  ground  for  a  new  trial,  in  the  absence  of  circum- 
stances which  excite  suspicion  of  abuse.*  In  Pennsylvania, 
in  the  trial  of  offenses  not  capital,  it  has  not  been  the  prac- 
tice to  "  confine  the  jury  during  the  hearing  of  the  evidence, 
and  direct  them  to  avoid  all  conversation  with  any  person 
about  the  case."  ^ 

(1.)  In  Connech'cKf. —  An  early  statute  of  Connecticut 
recited  that,  "  when  the  court  have  committed  au}'^  cause  to 
the  consideration  of  the  jury,  the  jury  shall  be  confined 
under  the  custody  of  an  officer,  appointed  b}'  the  court, 
until  they  are  agreed  on  a  verdict."  The  oath  prescribed 
by  statute  for  jurors  was  as  follows:  "To  keep  secret 
theii  own  and  their  fellows'  counsel,  and  to  speak  noth- 
ing to  any  one,  nor  suffer  any  to  speak  to  them,  of 
the  business  in  hand,  but  among  themselves ;  and  when 
agreed  upon  a  verdict,  that  they  will  keep  it  secret,  till 
they  deliver  it  up  in  court."  It  was  stated  in  an  early  case 
in  that  State  that  the  guards  provided  by  this  oath  were  not 
rontained  in  the  oath  administered  in  England,  nor  in  any 
of  those  States  where  jurors  arc  strictly  confined.  In  view 
of  this  fact,  and  considering  the  settled  practice  of  a  hun- 
dred years,  the  court  held  that  the  statute  should  not  be  en- 
forced literally,  and  that  the  fact  that  the  jur}^  separated, 
in  a  civil  case,  after  the  cause  had  been  committed  to  them, 
I'emained  ai)art  over  night,  and  in  tlie  morning  met  to  agree 
upon  their  verdict,  and  delivered  it  in  court  when  the  court 
opened,  was  no  ground  for  arresting  the  judgment.  In 
<'oniing  to  this  conclusion,  Baldwin,  J.,  said:  "  Ko  evils 
that  I  perceive,  result  from  the  [)ractice  in  i)ursuanceof  this 
construction,  which  would  not  follow  the  separation  of  jurors 
after  they  had  agreed  on,  and  l)efore  they  had  delivered  up 
their  verdict.     This  the  statute  permits.     I  j)resume  also  that 

'  SteplK  ns  V.  I'eoplo,  4  Park.  Cr.  R,  306,  497  (aniniied  19  N.  Y.  549) ; 
People  V.  Doii£^lii?s,  4  Cow.  20;  People  v.  Random,  7  Wend.  417. 
'^  :\rcCreaiy  v.  Com.,  2!)  Pa.  St.  :323,  327. 


"§   318.]  IN  CASES  OF  FELONY.  359 

with  us,  where  courts  are  in  the  habit  of  returning  juries  to  a 
«econd  consideration,  if  the  jury  should  agree  upon  a  ver- 
dict, and  then  separate,  and  after  reflection,  should,  on  the 
next  day,  agree  upon  a  different  verdict,  they  might  law- 
fully do  so.  If  they  may,  the  agreement  is  of  no  avail,  and 
under  a  different  practice,  would  soon  be  a  mere  pretence 
for  separation.  Nothing,  then,  short  of  a  rigorous  confine- 
meat,  according  to  the  rule  of  the  common  law,  till  the 
verdict  is  delivered  uj),  would  attain  the  object  sought. 
Many  inconveniences  would  follow  a  literal  execution  of  the 
statute  as  claimed.  It  would  hazard  many  late  judgments 
now  considered  at  rest.  It  would  make  a  very  unpleasant 
innovation  upon  the  habits  of  our  jurors;  and  I  am  confi- 
dent that  justice  would  not  be  promoted,  truth  more  clearly 
discovered,  or  parties  be  better  satisfied,  b}^  hurrying  on  the 
jury  to  a  hasty  decision,  and  denying  them  respite  or  repose 
till  they  should  agree.  Cases  are  often  committed  to  the  jury 
at  a  late  hour  of  the  day,  which  require  much  reflection, 
investigation,  and  sometimes  calculation.  They  will  geuer- 
erally  be  ill-prepared  for  this  immediately  after  the  fatigues 
of  a  tedious  trial,  and  may  be  unable  to  come  to  a  result  in 
seasonable  hours  ;  yet  such  are  the  cases  to  which  the  rule 
will  most  frequently  apply.  In  ordinary  cases,  the  jury 
have  no  occasion  to  separate,  and  seldom  do.  This  con- 
struction of  the  statute  does  not  appear  to  me  unreasonable. 
It  is  certainly  conformable  to  the  temper  of  the  times,  and 
the  habits  of  our  citizens.  And  I  am  not  convinced  that 
we  are  now  bound  to  abandon  it  after  it  has  been  sanc- 
tioned by  so  long  and  quiet  usage  ;  nor  that  the  advantages 
would  overbalance  the  inconveniences  resulting  from  a 
-change."  ^ 

'  Brandiii  v.  Grannis,  1  Conu.  402,  note.  This  was  a  civil  case,  but 
tlie  same  rule  was  afterwards  applied  in  a  trial  for  murder :  State  v.  Bab- 
cock,  1  Conn.  401.  In  State  v.  Williamson,  42  Conn.  261,  an  informa- 
tion for  burglary,  after  a  jurj'  had  been  impanelled,  the  case  was  post- 
poned indeliniti'lv,  and  the  court  was  afterwards  adjourned  for  nearly 
three  weeks.  When  the  court  next  began  its  session  it  \\'as  before  a 
-different  judge,  wbo  ordered  the  trial  of  this  case  to  proceed  before  the 
same  jury  that  had  before  been  impanelled,  against  the  objection  of  the 


360  CUSTODY  AND  SEPARATION  OF  JURORS.        [CIJ.   XVI  _ 

(2.)  In  Illinois. —  In  c;ii)it:il  oases,  in  Illinois,  the  pris- 
oner is  entitled  to  a  new  trial,  if  the  jury  separate  durins; 
the  trial,  "  unless  such  separation  was  the  result  of  misap- 
prehension, accident,  or  mistake  on  the  part  of  the  jury, 
and  under  circumstances  to  show  that  such  separation  could 
by  no  possibility,  have  resulted  to  the  prejudice  of  the 
prisoner."  ^  A  later  case  in  the  same  court,  however, 
takes  the  contrary  view,  that  unless  prejudice  affirmatively 
appear,  the  fact  that  the  jurors,  during  the  trial,  were  per- 
mitted to  minijle  with  bystanders,  will  not  vitiate  their  ver- 
dict.^ It  appeared  from  the  record  in  a  trial  for  forgery 
that  the  jury  were  permitted  to  disperse  from  time  to  time, 
the  trial  continuing  through  several  da3's,  but  the  record  was 
silent  as  to  whether  the  separation  was  with  the  consent  of 
the  prisoner.  From  this  it  was  presumed  that  the  separa- 
tion was  with  his  consent.^ 

(3.)  In  Indiana  there  is  a  statute  relating  to  State  trials,, 
in  the  following  language:  "When  jurors  are  permitted: 
to  separate  after  being  impanelled,  and  at  each  adjourn- 
ment, they  must  be  admonished  by  the  court  that  it  is  their 
duty  not  to  converse  among  themselves,  nor  to  suffer  others 
to  converse  with  them,  on  any  subject  connected  with  the 
trial,  or  to  form  or  express  any  opinion  thereon,  until  the 
case  is  fully  submitted  to  them."'*  This  statute  permits 
the  separation  of  the  jury  during  the  trial,  with  the  consent 
of  the  prisoner,*  without  their  being  in  charge  of  a  sworn 

dofendant.  This  was  lield  erroneous.  Under  the  eirciimstances,  tlie 
Supreme  Court  held  that  it  could  hardly  be  presumed  that  the  judge  or 
the  jury  supposed  that  this  case  was  still  held  by  them  under  considera- 
tion. "  The  mingling  of  a  jury  with  the  bystanders,"  said  Foster,  J., 
"and  with  the  community  generally,  after  a  case  has  been  commenced, 
is  an  evil  always  to  be  avoided  when  practicable,  as  such  a  course  is  al- 
most inevitably  prejudicial  to  a  fair  and  impartial  trial."' 

1  Russell  V.  People,  44  Til.  508;  Jumpertz  v.  People,  21  III.  411;   Mc- 
Kinney  v.  People,  7  III.  540,  553. 

2  Adams  v.  People,  47  111.   oSl.     The  same  was  declared  in  Reins  v. 
People,  30  111.  256,  273. 

3  Pate  v.  People,  8  111.  641. 

■•  2  Rev.  Stats.  Ind.  1852,  p.  376,  sec.  112. 

5  Evans  v.  State,  7  Ind.  271;  McCorkle  v.  State,  14  Ind.  39,  41;  Quinti 
V.  State,  14  Ind.  589;  Anderson  v.  State.  28  Ind.  22,  25. 


§   318.]  IN  CASES  or  FELONY.  SC)1 

officer.  The  case  of  Jones  v.  The  State^^  which  holds  that 
it  must  appeiir  of  record  that  at  the  time  of  the  adjourn- 
ments the  jury  were  admonished  in  reference  to  their  duties, 
according  to  the  statute,  and  that  they  were  kept  in  care  of 
a  sworn  officer,  is  no  longer  regarded  as  authority.^ 

(4.)  In  Iowa  it  is  within  the  discretion  of  the  court, 
after  the  jury  is  sworn  and  before  the  cause  is  submitted 
to  them,  to  permit  them  to  separate,  or  to  keep  them  in 
charge  of  a  proper  officer.^  It  is  not  error,  therefore,  for 
the  court  to  refuse,  on  the  application  of  the  defendant, 
to  direct  that  the  jury  should  be  kept  together  during 
the  trial,  unless  it  is  made  apparent  that  the  court  in  some 
manner  exceeded  the  discretion  vested  in  it,  or  exercised 
it  to  the  prejudice  of  the  defendant's  rights.*  On  a  trial 
for  burning  a  store  in  the  night  time,  after  the  case  was 
submitted  to  the  jury,  and  while  they  were  on  their  way  to 
their  room,  one  of  them  separated  from  his  fellows  so  far 
as  to  go  to  his  hotel  and  obtain  some  tobacco,  but  arrived  at 
the  jury-room  very  nearly  as  soon  as  the  rest  of  the  jury,. 
and  before  their  deliberations  had  begun.  In  the  absence 
of  a  showing  of  prejudice  this  separation  was  held  to  be  not 
such  as  to  vitiate  the  verdict.^ 

(5.)  In  Minnesota. —  An  early  case  in  Minnesota  laid' 
down  the  doctrine  that  the  jury  should  be  allowed  to  sepa- 
rate during  the  ordinary  adjournments  of  lengthy  trials  in 
capital  cases,  where  no  special  reason  exists  for  denying  it, 
and  that  such  separation  is  no  ground  for  a  new  trial,  unless 
it  be  made  to  appear  that  improper  influence  has  been  ex- 
erted upon  the  jury  in  consequence  of  their  separation.'^ 
The  same  court  held,  in  a  later  case,  that  it  is  not  error  to 
permit  the  jury  to  separate  during  a  capital  trial .^  But  a 
still  later   case   brought  the  attention  of  the   court  to  the^ 

1  2  Blackf.  475. 

2  Evans  v.  State,  7  Ind.  271 ;  Anderson  v.  State,  28  Ind.  22,  25. 

3  Code  1851,  sec.  3011. 

■•  State  V.  Gillick,  10  Iowa,  98. 
*  State  V.  Wart,  51  Iowa,  587. 
8  State  V.  Bilansky,  3  Minn.  427. 
7  State  V.  Ryan,  13  Minn.  370. 


362  CUSTODY  AND  SEPARATION  OF  JUROHS.        [CH.  XVI. 

ubuses  to  Avhich  this  might  lead,  and  also  to  the  terms  of  a 
statute  impliedly  forbidding  it.  The  trial  lasted  three 
days.  Duriiiir  the  ordinary  intervals  of  adjournment  the 
jury  were  allowed,  by  the  court  of  its  own  motion,  to  go 
ai  large,  the  prisoner's  consent  not  being  asked,  and  he 
making  no  remarks  upon  the  subject.  Aftei-  the  court 
delivered  to  them  its  charge,  they  were  given  a  recess  of 
live  minutes,  during  which  time  they  were  allowed  to 
leave  the  court  room  and  go  at  large,  the  prisoner  making- 
no  objections  or  remarks.  When  they  returned,  the  sheriff 
was  sworn  to  take  charge  of  them,  and  they  retired  to  con- 
sider of  their  verdict.  The  statute  provided  that,  after 
hearing  the  charge,  the  jury  might  either  decide  the  case 
in  court,  or  retire  for  deliberation;  that  if  they  did  not 
agree  without  retiring,  one  or  more  officers  should  be  sworn 
to  take  charge  of  them  ;  that  they  should  be  kept  together 
in  some  private  and  convenient  place,  without  food  or 
drink  except  bread  and  water,  unless  otherwise  ordered  b}' 
the  court,  etc.  It  was  held  that  any  separation  of  the  jury 
in  criminal  cases,  after  the  case  has  been  given  to  them, 
until  their  agreement  or  discharo-e,  is  contrarv  to  the  mean- 
ing  and  intent  of  this  statute  ;  and  therefore  a  new  trial 
■was  granted.'  It  is  to  be  observed  that  this  case  does  not 
conflict  with  the  two  preceding  cases,  because  here  the  error 
for  which  the  new  trial  was  granted  consisted  in  allowing 
tiie  jury  to  separate  after  the  court  had  delivered  to  them 
il>  charge  ;  whereas  the  previous  cases  go  no  further  than 
to  hold  that  the  judge  may  permit  the  jury  to  separate 
during  adjournments,  before  the  case  has  been  finally  com- 
mitted to  them.- 

(G.)  In  MinHourl  the  law  was  formerly  well  settled  that 
the  separation  of  the  jury  in  a  criminal  case  will  not  inval- 
idate their  verdict  or  furnish  grounds  for  a  new  trial,  if 
there  is  no  reason  to  suspect  that  they  have  been  tampered 


State  V.  Parraul.  10  .Minn.  178,  181. 
Infra  §  ;532. 


^318.]  IN  CASES  OF  FELONY.  363 

with,  or  have  acted  improperly.'  The  rule  has  been  applied 
equally  in  all  criminal  cases,  including  capital  felonies.^  It 
has  been  applied  indifferently  to  cases  where  the  separation 
took  place  before  the  jury  retired  to  deliberate  on  their 
verdict,  and  to  cases  where  it  took  place  after  they  had  re- 
tired.' It  has  been  applied  equally  in  cases  where  the  sep- 
aration was  in  violation  of  the  duty  of  the  separating 
jurors,  and  in  cases  where  it  was  with  the  sanction  of  the 
court,*  and  with  the  consent  of  the  prisoner."  But  now,  by 
ii  recent  statute,"  "  the  court  may  grant  a  new  trial  *  *  * 
when  the  jury  has  been  separated  without  leave  of  the 
court,  after  retiring  to  deliberate  upon  their  verdict,  or  has 
been  guilty  of  any  misconduct  tending  to  prevent  a  fair  and 
due  consideration  of  the  case."  This,  it  is  seen,  does  not 
touch  the  case  of  separations  before  the  jury  have  retired 
to  consider  of  their  verdict.  It  therefore  leaves  the  rules 
of  the  foregoing  cases  in  force  in  most  of  their  applications. 
(7.)  In  New  York. —  The  judges  of  the  Court  of  Ap- 
peals of  New  York  have  not  been  unanimous  upon  this 
question.  In  a  case  where  it  was  presented  and  considered 
i)X.  unusual  length,  six  out  of  eight  of  them  were  of  opin- 
ion that  the  court  has  power  to  permit  the  jury  to  separate 
during  the  progress  of  a  capital  trial,  upon  the  application 
of  the  prisoner,  or  upon  his  consent  tendered  without 
solicitation,  ])ending  the  adjournments  of  the  court  from 
day  to  day.  Four  of  the  judges  were  also  of  opinion  that 
the  court  has  power,  in  its  discretion,  independent  of  the 
consent  of  the  parties,  to  permit  the  jury  thus  to  separate. 
From  both  propositions  two  of  the  judges  dissented,  and 
i]}>on   the  last   point  two   of  them  expressed    no   opinion. 

1  State  V.  Bell,  70  Mo.  e:53:  State  v.  Braniioii,  45  Mo.  .S29;  State  v. 
Ilaiiow,  21  Mo.  440;  State  v.  Igo,  21  Mo.  4.')1);  State  v.  Barton,  19  Mo. 
227;  State  v.  Mix,  15  Mo.  153;  Whitney  v.  State,  8  Mo.  165. 

2  State  V.  Brannon,  supra;  State  v.  Harlow,  supra. 

••5  Whitney  v.  State,  8  Mo.  105;  State  v.  Tgo,  21  Mo.  4G0. 

*  State  V.  Braunon,  45  Mo.  329. 

^  Ibid. ;  State  v.  Mix,  15  Mo.  153. 

<^  1  Rev.  Stats.  1879,  sec.  1966. 

^  Stephen?  v.  People,  19  N.  Y.  549  (aflirniino-  s.  c,  4  Park'.  Cr.  R.  396, 495 


364  CUSTODY  AND  SEPARATION  OF  JURORS.        [CH.XVI. 

The  coii'.'lusion  of  the  court  was  aided  by  the  fact  that  the 
only  statute  upon  the  subject  in  New  York  provided  as  fol- 
lows :  "The  proceodinirs  prescribed  bylaw  in  civil  cases 
in  respect  to  the  iuipaMolling  of  juries,  the  keeping  them 
together,  and  the  manner  of  rendering  their  verdict,  shall 
be  had  upon  the  trial  of  indictments,"  ^  and  that  theie  was 
no  statute  in  New  York  requii-ing  the  conHneinent  and  isola- 
tion of  juries  in  civil  cases. 

(8.)  In  Ohio  the  same  rule  obtains.  Whether  jurors 
shall  he  permitted  to  separate  daring  tlie  progress  of  the 
trial  is  no  longer  an  open  question  in  that  State  ;  it  is  set- 
tled that  it  is  a  matter  committed  to  the  sound  discretion 
of  the  court. ^  "  In  both  civil  and  criminal  cases  the  couit 
may,  in  their  discretion,  during  the  progress  of  the  trial, 
permit  the  jury  to  disperse  for  the  purpose  of  obtaining 
food  and  rest,  and  may,  in  either  case,  direct  them  to  bring 
in  a  sealed  verdict;  but  in  no  case  can  the  jury,  after  they 
have  retired  to  consider  of  their  verdict,  be  permitted  to 
separate  and  disperse  until  they  have  agreed."^  The  law, 
as  thus  settled,  was  disturbed  by  the  enactment  of  the 
code  of  criminal  procedure  in  1869,  providing  that  '*  in  the 
trial  of  felonies  the  jury  shall  not  be  permitted  to  separate 


505).  This  case  follows  the  cases  of  People  v.  Douglass,  4  Cow.  26,  and' 
People  V.  Ransom,  7  Wend.  423,  and  in  effect  overrules  the  case  of  East- 
wood V.  People,  3  Park.  Cr.  R.  25;  though  it  is  to  be  distinguished  from 
all  three  of  these  cases  on  the  ground  that  in  them  the  question  was  as 
to  the  effect  of  an  unauthorized  separation. 

•  2  Rev.  Stats.  N.  Y.  (2d  ed.)  848.  The  New  York  Code  of  Criminal 
Procedure  of  1881  provides  as  follows:  ''  The  jurors  sworn  to  try  i.n  in- 
dictment may,  at  any  time  before  the  submission  of  the  cause  to  the 
jury,  in  the  discretion  of  the  court,  be  permitted  to  separate,  or  be  kept 
inchaigeof  proper  ollicers.  Such  ollicers  must  be  sworn  to  keep  the- 
jurors  together  until  the  next  meeting  of  the  court,  to  suffer  no  person  to 
speak  to  or  communicate  with  them,  nor  to  do  so  themselves,  on  any  sub- 
ject connected  with  tlie  trial,  and  to  return  them  into  court  at  the  next 
meeting  thereof."     Laws  N.  Y.  1881,  Ch.  442,  §  414. 

-  Sargent  v.  State,  11  Ohio,  472;  Davis  v.  State,  15  Ohio,  72,  83;  State 
v.  Dougherty,  1  West.  L.  J.  271 ;  State  v.  Wallahan,  Tappau  52 ;  Engle* 
v.  State,  13  Ohio,  400;  Parker  v.  State,  18  Ohio  St.  88. 

^  Sargent  v.  State,  supra,  per  Read,  J. 


•§   318.]  IN  CASES  OF  FELONY.  365 

after  being  sworn,  until  discharged  by  the  court."  ^  This 
provision  was  held  to  be  mandatory.  A  separation  could 
not  be  allowed  by  the  court,  during  the  progress  of  the 
trial,  even  with  the  consent  of  the  prisoner.-  But  this  sec- 
tion of  the  code  was  soon  amended,^  leaving  the  law  in  re- 
gard to  a  separation  of  the  jurors  during  the  progress  of 
trials  in  cases  of  felony  the  same  as  before  the  passage  of 
the  code.^ 

(9.)  In  Texas. —  The  Texas  code  of  criminal  procedure 
provides  that,  "  after  a  jury  has  been  sworn  and  impanelled 
to  try  any  case  of  felony,  they  shall  not  be  permitted  to  sep- 
arate until  they  have  returned  a  verdict,  unless  by  permission 
of  the  court,  with  the  consent  of  the  district  attorney  and 
the  defendant,  and  in  charge  of  an  officer,"^  Neverthe- 
less, it  has  been  held  in  that  State  that  the  mere  separation 
of  a  juror  from  his  fellows  during  their  deliberations,  un- 
accompanied by  an  officer,  is  no  ground  for  a  new  trial, 
there  being  no  suspicion  that  he  had  conversed  with  any 
one  not  of  the  jury  with  regard  to  the  case,  or  that  he  had 
been  guilty  of  any  misconduct  whereby  the  defendant  had 
■not  had  a  fair  trial. ^  In  this  case  and  others  where  a  like 
rule  has  been  applied,'  the  separation  which  took  place  was 
that  of  one  or  more  individual  members  of  the  jury  from 
their  fellows,  and  not  a  complete  dispersion  of  the  jury. 
Where  a  complete  dispersion  has  happened,  even  with  the 
■consent  of  the  prisoner's  counsel,  but  not  with  the  personal 
consent  of  the  prisoner,^  the  verdict  has  been  set  aside.* 
This  has  also  been  done  in  the  case  of  a  protracted  separa- 


'  66  Ohio  Laws,  312,  §  164. 

2  Cantwell  v.  State,  IS  Ohio  St.  477. 

3  See  68  Ohio  Laws,  5,  §  164. 

*  Weiss  V.  State,  22  Oliio  St.  486. 

»Tex.  Code  Criin.  Proc,  art.  605;  Pasch.  Dig.,  Tex.  Stats.,  art.  3070; 
Tex.  Code  Crim,  Proc,  1879,  §  687.  This  statute  has  no  reference  to 
misdemeanors.     Goode  v.  State,  2  Tex.  App.  520. 

«  Wakefield  v.  State,  41  Tex.  556. 

'  State  V.  Nelson,  32  Tex.  71 ;  Jenkins  v.  State,  41  Tex.  12S. 

*•  Brown  v.  State,  38  Tex.  482. 

-"  Early  v.  State,  1  Tex.  App.  248,  273. 


366  CUSTODY  AND  SEPARATION  OF  JURORS.        [CH.  XVI. 

tion  of  oiu;  or  more  jurors  from  their  fellows,  where  the 
officer  in  charge  has  not  been  in  constant  attendance  on 
them.'  When,  therefore,  duriniJ!;  a  protracted  trial  of  a 
capital  felon}',  the  hotel  in  which  the  jury  were  lodged, 
took  fire  and  was  consumed  ;  and  the  jurors,  escaping  from 
the  burning  building,  were  separated  for  an  hour  or  more, 
some  of  them  mingling  with  the  crowd,  and  others  resort- 
ing to  their  homes,  it  was  held  that  there  must  be  a  new- 
trial,  although  each  juror  swore  that  during  the  separation 
no  person  had  spoken  to  him,  or  in  his  presence,  with  refer- 
ence to  the  case  on  trial. ■^  This  and  later  cases  would  seen» 
to  have  the  effect  of  reversing  the  rule  of  the  earlier  cases» 
and  making  any  separation  of  the  jury  in  a  case  of  felony, 
unexplained  and  without  the  consent  of  the  defendant,  a 
ground  for  a  new  trial  under  the  statute.^  Nay,  the  court 
has  gone  so  far  as  to  censure  the  practice  of  receiving  the 
affidavit  of  the  separating  juror  to  show  that  his  separation 
from  his  fellows  was  for  an  innocent  purpose,  and  that  hc 
was  not  tampered  with  while  absent,  a  thing  which  nearly 
all  courts  permit.  The  court  say:  '*  The  verdict  of  a 
jury  impanelled  for  the  trial  of  a  felony  ought  never  to  havr 
to  be  explained  by  affidavit  or  otherwise ;  the  conduct  of  the 
jury  should  be  such  as  that  it  could  not  be  called  in  question. 
A  separation  of  the  jury,  or  of  one  member  from  the  bal- 
ance, is  prohibited  by  the  law,  and  for  this  cause  a  new 
trial  should  ordinarily  be  granted."*  Other  late  cases  in 
that  State  indicate  a  disposition  to  adhere  to  the  old  rule, 
namely,  that  a  separation  of  the  jury  will  be  no  cause  for 
a  new  trial,  unless  there  is  some  reason  to  believe  that 
wrong  to  the  prisoner  niight  have  resulted  from  it.* 

1  Warren  v.  State,  9  Tex.  App.  619,  631. 

2  Early  v.  State,  supra. 

3  Soria  v.  State,  2  Tex.  App.  297. 

*  Soria  v.  State,  supra.  In  this  particular  case,  however,  a  new  trlalf 
was  not  granted,  for  the  reason  that  the  separation  complained  of  was 
that  of  a  single  juror  for  a  necessary  purpose,  during  which  time  he 
was  in  the  view  of  the  bailiff  who  had  charge  of  the  jury. 

«  Cox  V.  State,  7  Tex.  App.  1 ;  Marnoch  v.  State,  7  Tex.  App.  269. 
272,  where  one  or  two  jurors  had  separated  from  their  fellow?,  and  a  new 


§   319.]  IN  CASES  OF  FELONY.  367 

It  may,  perhaps,  be  difficult  to  state  confidently  what  the 
law  of  Texas  under  this  head  is.  But  in  view  of  the  cases 
last  cited,  we  think  it  may  be  said  with  some  assurance  that 
in  that  State  a  complete  dispersion  of  the  jury  in  a  case  of 
felony,  in  which  the  jurors  pass  from  under  the  eye  of  the 
bailiff  havinof  them  in  charsje,  the  defendant  not  havini^ 
consented  thereto,  will  be  ground  for  a  new  trial ;  *  that  a 
temporary  separation  of  one  or  more  of  the  jurors  from 
their  felloAvs,  unexplained^  does  not  create  a  presumption 
against  the  purity  of  the  verdict  which  will  entitle  the  pris- 
oner to  a  new  trial ;  but  that  it  must  affirmatively  appear 
that  there  were  circumstances  attending  the  separation,  such 
as  might  have  affected  the  fairness  of  the  trial ;  ^  or,  as  said 
in  Early  v.  State,^  "  a  separation  of  the  jury  before  bring- 
ing in  their  verdict  in  a  capital  case,  does  not  per  se  render 
their  verdict  void,  but  such  verdict  will  be  set  aside  or  not, 
according  to  the  circumstances." 

(10.)  In  Wisconsin  \t  \B  settled  that  convictions  in  cap- 
ital cases  cannot  be  sustained,  where  the  jury  has  been  per- 
mitted to  separate  during  the  trial,  "  unless  it  appears  that 
the  separation  of  the  jurors  was  not  followed  by  improper 
conduct  on  their  part,  nor  by  any  circumstance  calculated 
to  exert  an  improper  influence  on  the  verdict."  * 

§  319.  The  True  Rule  otherwise  in  Capital  Felonies. — 
(1.)  General  Views — Constitutional  Obligations. —  Th(!rc 
can  be  no  question,  however,  that  the  rule  stated  in  the 
commencement  of  the  preceding  section,  at  least  in  its 
application  to  capital  felonies,  is  a  departure  from  the 
rule  of  the  common  law.  The  rule  of  that  law  was,  we 
apprehend,  substantially   uniform    in    all   cases  of   felony, 

trial  was  granted,  but  on  anottier  ground.     See  also  Gilleland  v.  State, 
44  Tex.  356. 

1  Early  v.  State,  1  Tex.  App.  248,  273. 

2  Davis  V.  State,  3  Tex.  App.  91,  101;  (modifying  Jones  v.  State, 
13  Tex.  168,  which  was  based  upon  Hines  v.  State,  8  Humph.  597). 

3  1  Tex.  App.  248. 

*  State  V.  Dolling,  37  Wis.  396;  Rowan  v.  State,  30  Wis.  129;  Keenan 
V.  State,  8  Wis.  132.  See  Crockett  v.  State,  52  Wis.  211;  s.  c,  12  Cunt. 
L.  J.  479. 


3(38  CUSTODY  AND  SEPARATION  OF  JUROIIS.       [CH.  XVI. 

for  by  tluit  l:i\v  nearly  all  felonies  were  capital.  By 
that  law,  the  jury  were  never  permitted  to  separate 
after  they  had  been  charged  with  a  case.^  "Whether 
such  a  separation  anciently  worked  a  discharge  of  the  pris- 
oner is  not  clear.^  Probably  it  was  ground  for  a  new  trial 
according  to  a  precedent  given  by  Lord  Hale.^  In 
modern  times  it  is  merely  ground  for  a  new  trial, 
even  where  unauthorized.*  The  provisions  of  our  national 
and  State  constitutions  which  guarantee  the  right  of 
trial  by  jury,  are  understood  to  be  intended  to  preserve 
that  right  substantially  as  it  existed  at  common  law.  It 
may  be  doubted,  whether,  where  a  jury  impanelled  to  try 
a  capital  felony  are  permitted  to  disperse,  to  mingle  with 
the  community,  and  to  imbibe  their  prejudices,  before  ren- 
dering their  verdict,  the  prisoner  has  enjoyed  the  right 
of  trial  by  jury  within  the  meaning  of  these  constitutional 
provisions.  Certainly,  in  all  such  cases  where  the  common 
law  furnishes  the  rule  of  decision,  a  separation  and  disper- 
sion of  the  jury,  after  they  have  been  sworn  and  charged 
with  the  prisoner,  and  before  they  have  agreed  upon  their 
verdict,  entitles  the  prisoner  to  a  new  trial .^  This  rule  must, 
however,  be  taken  with  the  qualifications  stated  in  the  next 
two  sections. 

( 2. )  Rule  in  Mississippi. — In  Mississippi  the  extreme  posi- 
tion is  taken,  that  the  separation  of  a  jury  in  a  capital  case 
^conclusively  vitiates  the  verdict,  and  entitles  the  prisoner  to  a 
new  trial.  The  court  repudiates  the  doctrine  that  a  separation 
has  no  further  effect  than  to  render  the  wcy^'xqX  prima  facie 
vicious,  and  holds  that  where  a  separation  is  shown,  it  is  im- 
material to  inquire  whether  improper  influences  were  exerted 

>  C(H  Litt.  227.  b. 

-See  Co.  Litt.  227.  b;  note  in  7  How.  St  .Tr.  497,  where  man/  prece- 
dents are  collected. 

•"  2  Hale  P.  C.  295. 

^Williams  v.  State,  45  Ala.  57;  People  v.  Reagle,  60  Barb.  527,  544; 
<mte.  §  312. 

5  A  ver3'  forcible  and  considerate  discussion  of  the  question  will  bo 
found  in  the  opinion  of  Chief  Justice  Whelpley,  in  State  v.  Cucuel,  31  N- 
J.  L.  252,  254. 


f   320.]  ABSOLUTE  ISOLATION  UNNECESSARY.  369 

upon  the  jury  or  not.  In  the  opinion  of  the  court,  the  only 
safety  lies  in  keeping  the  jury  free  from  liability  to  such  in- 
fluences.^ Earlier  cases  in  that  State,  it  will  be  observed, 
did  not  go  to  this  length,  but  maintained  the  rule  that  every 
separation  of  a  juror  from  his  fellows  and  from  the  bailiff, 
in  such  a  case,  should  be  presumed  to  have  vitiated  the 
verdict,  unless  it  were  affirmatively  proved  that  the  jury  was 
exposed  to  no  improper  intiuence.^  The  difficulties  of  this 
■extreme  rule  seem  insuperable  ;  not  the  least  of  which  is, 
that  it  places  it  in  the  power  of  a  single  juror,  by  separat- 
ing from  his  fellows  for  a  brief  interval,  to  produce  a  mis- 
trial. 

§  320.  Rule  does  not  extend  to  absolute  Confinement  and 
Isolation. —  The  rule  of  the  common  law  did  not,  however, 
extend  to  absolute  isolation,  which  in  many  cases  would 
have  been  impracticable  in  the  early  times  in  England,  and 
still  more  so  in  this  country,  on  account  of  the  absence  of 
the  necessary  accommodations.  This  has  been  conceded  in 
many  cases.  It  was  pointed  out  by  the  Court  of  Appeals 
of  New  Jersey,  after  a  very  thorough  discussion  of  the  sub- 
ject in  which  the  court  thus  summed  up  its  conclusion  :  "  The 
legal  right  of  the  prisoner  who  is  tried  for  his  life  is,  that 
the  court  should  put  the  jury,  on  an  adjournment,  in  the 
keeping  of  sworn  officers,  with  an  injunction  to  prevent 
them  from  holding  intercourse  with  any  persons,  such 
sworn  officers  inclusive,  on  the  subject  of  the  trial.  It  is 
not  the  legal  right  of  the  prisoner  that  the  court  should  go 
further  than  this.  All  restrictions  upon  the  jury  beyond 
this  limit  are  matters  of  discretion  with  the  court,  and  if 
-omitted,  such  omission  affords  no  grounds  of  exception  to 
the  conduct  of  the  cause."  ^  In  like  manner,  it  is  laid  down 
in  Kentucky  that  a  substantial  performance  of  the  duty  en- 
joined by  a  statute  of  keeping  the  jury  together,  is  all  that 
is  required,  even  in  capital  cases.     The  members  of  such  a 

1  Woods  V.  State,  43  Miss.  3G4.      Compare  Boles  v.  State,  13  Smed.  & 
M.398;  Have  V.  State,  4  How.  (Miss.;  187. 

2  Organ  v.  State,  26  Miss.  78,  83. 

8  State  V.  Cucuel,  31  N.  J.  L.  257,  oi)inion  by  Whelpley,  C.  J. 

(24) 


370  CUSTODY  AND  SEPARATION  OF  JURORS.        [CH.  XVI, 

jury  must  be  so  kept  as  in  fact  to  be  present  Avith  each 
other,  whether  in  the  same  or  in  adjoining  apartments,  so- 
situated  as  to  admit  of  free  and  unrestricted  intercourse 
between  them  ;  whilst  the  officer  liimself  should  remain  in 
such  (convenient  situation  as  to  observe  any  attempt  at  tam- 
pering, or  any  irregularity  on  the  part  of  the  jury.  But  it 
is  not  absolutely  recjuired  that  the  entire  jury  should  be 
kept  within  the  same  room,  without  regard  to  comfort  or 
practical  convenience,  or  that  the  officer  should  lodge  in  the 
same  apartment  with  them.^  So,  of  course,  it  is  permitted 
that  jurors  may  separate  from  their  fellows  when  necessary 
to  attend  to  the  calls  of  nature,^  or  go  to  their  homes  for 
changes  of  linen,  or  the  like,^  provided  they  are  accom- 
[)anied  by  a  sworn  officer,  and  sufficiently  watched  by  him 
to  exclude  any  possibility  of  tampering  or  of  prejudice  ;  and 
such  separations,  where  no  improper  communication  is^ 
shown,  do  not  vitiate  verdicts.  And  it  has  been  frequently 
held  that  a  momentary  separation  of  a  juror  from  his  fel- 
lows, even  without  the  presence  of  a  sworn  officer,  will  not 
vitiate  the  verdict,  where  no  facts  exist  which  raise  a  suspi- 
cion that  he  may  have  been  tampered  with ;  *  nor  will  a  sep- 
aration of  longer  duration,  where  it  is  shown  as  a  fact  that 
no  abuse  took  place.'* 

§  321.  May  separate  in  Charge  of  Sworn  Officer. —  On 
the  contrary,  as  we  have  already  seen,®  the  jurors  were  per- 
mitted to  separate  during  the  progress  of  capital  trials,  under 

'  Com.  V.  Shields,  2  Bnsh,  81. 

2  State  V.  Conway,  23  Minn.  291,  293;  State  v.  Turner,  25  La.  An.  573; 
Coker  v.  State,  20  Ark.  53,  60 ;  Jack  v.  State,  26  Tex.  1 ;  People  v.  Bonney, 
19  Cal.  426,  445;  Carnaglian  v.  Ward,  8  Nev.  30;  State  v.  Bowman,  45 
Iowa,  418;  Barlow  v.  State,  2  Blackf.  114,  116. 

3  Crockett  v.  State,  52  Wis.  211;  s.  c,  12  Cent.  L.  J.  479;  State  v. 
Cucuel,  31  N.  J.  L.  249, 259 ;  State  v.  O'Brien,  7  B.  I.  337,  340 ;  post,  §  371 . 

<  State  V.  Turner,  25  La.  An.  573;  State  v.  Conway,  23  Minn.  292; 
State  V.  Carstaphen,  2  Hayw.  (N.  C.)  238;  McCarter  v.  Com.,  11  Leigh, 
633;  Jenkins  v.  State,  41  Tex.  128;  State  v.  Wart,  51  Iowa,  587;  Cole- 
man V.  State,  17  Fla.  200;  State  v.  Bell,  70  Mo.  633. 

s  State  V.  Cucuel,  31  N.  J.  L.  249,  260;  Westmoreland  v.  State,  45  Qa. 
225;  State  V.  Harris,  12  Nev.  414. 

«  Ante,  §  310. 


§  322.]  SEPARATION  IN  CHHRGE  OF  UNSWORN  OFFICER.  371 

charge  of  sworn  officers.  "From  the  foregoing  view  of 
the  topic  discussed,"  siiid  Whelpley,  C.  J.,  in  the  case 
already  quoted  from,  "  it  will  be  perceived  that  it  was  en- 
tirely competent  for  the  court  to  authorize  the  jury,  or  any 
of  them,  to  visit  their  homes,  in  the  company  of  one  of  its 
sworn  officers.  So  it  was  equally  legal  for  the  court  to 
permit,  under  the  same  supervision,  the  jury,  or  any  of  its 
members,  to  ride  or  walk  out  for  exercise.  All  that  the 
defendant  can  demand  as  a  right  is,  that  the  court  should 
not  sanction  the  withdrawal  of  the  jury,  in  whole  or  in 
part,  during  the  trial,  from  the  presence  of  the  court  or  its 
officers."  ^ 

§  322.  But  not  ill  Charge  of  an  Unsworn  Officer. —  The 
rule  which  requires  a  bailiff  to  be  sworn  to  take  charge  of 
the  jurors  when  they  depart  from  the  bar,  is  a  very  ancient 
one.  Thus,  it  is  said  by  Lord  Hale:  "  When  the  jurors 
depart  from  the  bar,  a  bailiff  ought  to  be  sworn  to  ke(^p 
them  together,  and  not  to  suffer  any  to  speak  with  them."  ^ 
The  oft-quoted  precedent  set  by  Lord  Kenyon^  is  authority 
for  the  rule  that  when  the  jury  are  sent  away  from  the  bar 

1  State  V.  Cucuel.  31  N.  J.  L.  257.  The  misconduct  of  such  an  officer 
ia  absenting  himself  from  his  charge  will  not  be  ground  for  a  new  trial, 
if  it  appear  that  the  jury  were  guilty  of  no  misconduct,  and  that  no 
prejudice  resulted.  Hoover  v.  State,  5  Baxter  (Tenu.),  672.  Upon  the 
conviction  of  Elizabeth  Canning  for  perjury  in  tlie  j^ear  1754,  her  friends 
drew  up  and  proposed  to  counsel  a  number  of  queries,  among  which 
was  the  following,  proposed  to  Sollom  Emlyii,  Esq.,  editor  of  Hale's 
Pleas  of  the  Crown:  '"IT.  Is  it  agreeable  to  law  that  a  jury  once 
charged  with  the  evidence  may  be  permitted  to  go  at  large  before  they 
have  delivered  in  their  verdict?*'  To  which  he  answered:  "I  am  of 
opinion  that  though  a  jury  once  charged  may,  by  consent  of  parties,  he 
discharged  wholly  from  trying  the  cause;  yet  I  do  not  apprehend  that 
the  law  will  allow  them  to  go  at  large  in  a  criminal  case,  while  the  trial  is 
depending;  for  though  in  a  long  trial,  such  a  continement  may  be  incon- 
venient, yet  I  cannot  find  that  the  law  has  provided  any  remedy  for  it; 
it  being  in  the  eye  of  the  law  a  less  inconvenience  than  exposing  the 
jury  to  be  tampered  with  before  they  have  brought  in  their  verdict;  yet 
r  see  not  but  that  they  may  take  refi-eshment  and  retire  to  rest  in  a  place 
provided  for  them,  provided  that  thej^  be  guarded  by  a  sworn  oflicer 
that  nobody  be  permitted  to  speak  to  them.''    19  How.  St.  Tr.  670,  note^ 

2  2  Hale,  P.  C.  296. 

^  Rex  V.  Stone,  6  T.  R.  527. 


372  CUSTODY  AND  SEPARATION  OF  JUROHS.         [CH.  XVI. 

of  the  court  pending  an  iidjournnient,  or  to  deliberate  on 
their  verdict,  they  must  be  in  charge  of  an  officer  who  has 
been  specially  sworn  to  attend  them.  Some  of  the  courts 
of  this  countr}',  administering  this  rule,  hold  that  it  is  error 
for  the  court,  in  cases  of  felony,  to  permit  the  jury,  after 
they  have  been  impanelled,  to  leave  the  presence  of  the 
court  in  charge  of  officers  who  have  not  been  specially 
sworn  in  the  usual  or  prescribed  manner.^  And  this  is  no 
doubt  the  rule  in  those  States  where  statutes  exist  requiring 
that  jurors  in  criminal  trials  shall  not  leave  the  bar  of  the 
court  except  in  charge  of  officers  sworn  to  attend  them,  and 
prescribing  the  form  of  the  oath.  Thus,  in  Kentucky  there 
is  a  statute  which  requires  that  "  the  officer  must  be  sworn 
to  keep  the  jury  together  during  the  adjournment  of  the 
court,  and  to  suffer  no  person  to  comnmnicate  with  them  on 
any  subject  connected  with  the  trial,  nor  do  so  them- 
selves."^ Under  this  statute,  it  is  regarded  as  imperative 
that  the  officer  taking  charge  of  the  jury  should  be  specially 
sworn,  and  if  this  is  not  done,  it  will  be  ground  for  a  new 
trial ;  it  is  not  necessary  that  the  sheriff,  after  being  once 
so  sworn  in  a  particular  case,  should  be  again  sworn  after 
every  adjournment  or  recess  of  the  court.^  But,  in  the 
absence  of  such  a  statute,  it  has  been  held  that  where  the 
jury  is  placed  in  charge  of  a  sworn  officer,  as  a  sheriff,*  or 
a  constable,^  whose  duty  it  is,  ex  officio,  to  take  charge  of 

■J  Gibbons    v.  People,   23  111.   518;  Mclntyre  v.  People,  38  111.    514; 
'Lewis  V.  People,  44  111.  452;  McCanii  v.  State,  9  Sraed.  &  M.  4G5;  Hare 
V.  State,  4  How.  (Miss.)  187;  Jones  v.  State,  2  Blackf.  475,  478;  Com.  v. 
Shields,  2  Bush,  81;  Bniekcr  v.  State,  IG  Wis.  333.     See  1  Cliit.  Or.  L. 
*628.    The  iiile  was  applied  in  a  civil  case  in  Staley  v.  Barhite,  2  Caiues, 
221. 
«  Crim.  Code  Ky.  §  242. 
-3  Com.  V.  Shields,  2  Bush,  81. 

*  Bennett  v.  Corn.,  8  Leigh  (.Va.)  745. 

*  Davis  V.  State,  15  Ohio,  72,  83,  Read,  J.,  saying:  ''One  of  the  ob- 
jects of  administering  the  special  oath  to  olScers  having  charge  of  juries 
iu  ancient  times  appears  to  be,  to  secure  an  observance  of  those  sense- 
less and  harsli  measures  which  look  oftentimes  to  the  compelling  of  the 
verdict  by  physical  suffering  rather  than  a  conviction  of  reason,  which 
both  officer  and  jury  are  disposed  to  disregard.  That  has  passed  away, 
aad  with  it  the  means  required  to  enforce  it." 


§   323.]         WHAT  OFFICER  SWORN  TO  ATTEND  THEM.  373 

them  and  keep  them  top^ether,  it  is  not  indispensably  neces- 
sary that  lie  should  be  specially  sworn.  When  the  jury  do 
not  retire  from  the  court  room  to  deliberate  upon  their  ver- 
dict, it  is,  of  course,  not  necessary  that  an  oiBcer  should  be 
sworn  to  take  charge  of  them  ;  and  in  civil  cases  before 
justices  of  the  peace,  re-examined  as  upon  writ  of  error,  it 
has  been  held  that  unless  it  affirmatively  appear  that  the- 
jury  left  the  court  room  to  consult  upon  their  verdict,  it 
will  be  no  ground  of  error  that  it  does  not  appear  that  an. 
officer  was  sworn  to  attend  them.^ 

§  323.  What  Officer  sworn  to  attend  them  —  Sheriff, 
Constable,  or  Coroner. —  In  the  absence  of  a  special  statu- 
tory direction,  the  officer  sworn  to  take  charge  of  the  jury 
during  their  deliberations,  need  not  necessarily  be  the 
sheriff,  although  they  are  convened  by  him.  After  they 
are  impanelled,  they  are  under  the  control  of  the  court, 
who  may  select  an  officer  to  take  charge  of  them  ;  and  a 
constable  may  well  be  selected  and  sworn  for  that  purpose 
in  a  civil  proceeding  before  a  justice  of  the  peace. ^  And 
so  in  a  civil  case  in  a  superior  court  of  record,  where  the 
sheriff  is  incapable  of  acting  by  reason  of  interest,  and 
there  is  no  coroner  of  the  parish,  the  judge  may  appoint  a 
special  officer  to  attend  the  jury.^  In  the  absence  of  any 
statutory  expression  on  the  subject,  it  has  been  held  that  a 


1  Fink  V.  Hall,  8  Johns.  437;  Hatch  v.  Mann,  9  Wend.  262;  Meyer  v. 
Foster,  16  Wis.  294.  So,  as  held  in  a  late  case,  when  the  jury,  in  the 
presence  of  the  court  sitting  below  stairs,  retire  to  the  upper  story  of 
the  court-house  to  deliberate  upon  their  verdict,  ffoing  up  a  stairway 
leading  directlv  from  the  room  in  which  the  court  sits,  the  presumption 
is  that  the  hall  up  stairs  is  a  private  and  convenient  place  for  the  delibera- 
tions of  the  jury ;  and  unless  it  appear  that  their  privacy  was  invaded, 
the  verdict  will  not  be  set  aside  because  no  officer  was  sworn  to  attend 
thorn,  or  did  in  fact  attend  them  during  the  time  they  were  absent,  they 
having  returned  into  court  by  the  same  stairway,  and  it  not  appearing 
by  petition  for  certiorari,  or  otherwise,  that  the  court  did  not  continue  to 
sit  at  the  foot  of  the  stairs  during  the  whole  time  thej^  were  above,  or 
that  there  was  any  but  the  one  way  to  or  from  the  upper  story.  Smith 
V.  State,  63  Ga.  169. 

2  Smith  V.  Williamson,  11  N.  J.  L.  313. 

3  Harbour  v.  Scott,  12  La.  An.  152. 


374         CUSTODY  AM)  SEPARATION  OF  JUrOUS.   [  CII.  XVI. 

minor  is  not  incompetent  for  the  purpose  ;  he  would  be,  at 
least,  an  officer  de  fado} 

§  324,  Oflicer  Incompetent  by  Reason  of  Special  Cir- 
cumstances.—  It  may  be  true  that,  owing  to  the  inanner  in 
which  a  jury  is  selected  and  drawn,  the  sheriff  will  not  be 
disqualified  from  performing  the  mere  ministerial  duty  of 
summoning  them,  by  reason  of  the  fact  that  there  is  a  suit 
pending  at  the  term  for  which  the  jury  is  drawn,  in  which 
he  is  a  necessary  and  interested  party  ;  ^  yet  it  would  not  be 
becoming  in  such  a  case,  that  he  should  attend  upon  the 
jury  during  their  deliberations  ;  and  his  place  must  then  be 
tilled  by  the  coroner,  or  other  officer  designated  by  law  to 
act  in  cases  where  the  sheriff  is  incompetent ;  ^  or  by  an 
officer  specially  appointed  for  that  purpose.^ 

§  325.  Personal  Custody  of  a  Juror  by  the  Judge  — 
His  Personal  Authority  over  the  Jury  during  Recess. — 
The  Court  of  Appeals  of  Virginia  has  taken  a  view  of 
this  question  different  from  that  of  most  of  the  American 
courts,  and  in  some  respects  peculiar  to  itself.  That  court 
has  ruled  that  it  is  not  ground  for  a  new  trial,  that  the 
judge  who  presided  is  shown  to  have  visited  the  jury  in 
their  room  to  inquire  after  their  health,  to  have  taken  per- 
sonal custody  of  a  juror  who  had  been  separated  from  his 
fellows  for  a  short  time  during  the  recess  of  the  court,  and 
to  have  given  personal  directions  to  the  sheriff,  during  such 
recess,  as  to  the  custody  of  the  jur3\  In  giving  the  opinion 
of  the  court  on  this  point,  Rives,  J.,  discussed  at  consider- 
able length  the  powers  of  the  judge  over  the  jury  in  crim- 
inal trials  while  the  court  is  not  in  session.  "  It  is  his 
appropriate  function,"  said  the  learned  judge,  "to  preside 
over  the  jury  Avhile  impanelled  in  court.  He  liberally  has 
the  custody  and  oversight  of  them  while  sitting,  and  has  no 
need  of  a  sheriff,  save  to  attend  a  juryman  who  may  be 
called  off,  or  to  conduct  the  jury  to  their  room.      So,  when 

1  McCiinn  v.  reor)le.  SS  III.  lO:?. 
-'  Ante,  §§  130,  132. 
^  State  V.  Jutlf^e,  11  La.  An.  7'). 
"•  See  preceding  section. 


*§   325.]  CUSTODY  OF  A  JUROR  BY  THE  JUDGE.  37 f) 

he  leaves  the  bench  for  a  recess  during  the  day,  it  is  not 
usual,  I  believe,  to  swear  the  sheriffs  in  charge  of  them, 
because  in  contemplation  of  law,  the  court  is  still  in  session  ; 
there  is  no  record  made  of  the  adjournment ;  and  the  jury 
is  still  under  the  charge  and  supervision  of  the  judge.  The 
whole  term  is,  in  like  contemplation  of  law,  hut  one  day  ;  and 
-if  it  were  possible  to  hold  a  continuous  session,  there  would  be 
no  necessity  of  confiding  the  jury  to  any  one  but  the  judge. 
He  is  the  high  and  responsible  functionary  intrusted  with 
the  conduct  of  criminal  trials,  and  bound  to  preserve  the 
purity  of  jury  trial,  and  place  it  beyond  suspicion  of  all  im- 
l)roper  interference.  It  would  be  well  for  the  protection  of 
prisoners  and  the  behavior  of  juries,  if  it  were  possible  for 
the  judge  to  keep  them.  Instead  of  its  being  said  he  is  the 
last  man  who  should  have  charge  of  the  jury,  he  is  the  first 
And  best,  and  the  very  one  to  whom  the  charge  is  confided 
by  law.  But  it  is  not  possible  for  him  to  discharge  the 
functions  at  all  times  ;  hence  has  grown  up  the  custom  of 
committing  the  jury,  on  the  adjournment  of  the  court  for 
the  day,  to  the  sheriff,  sworn  to  '  keep  them,  and  neither 
.speak  to  them,  nor  suffer  any  other  person  to  speak  to 
them,  touching  any  matter  relative  to  the  trial,  until  they  re- 
turn into  court.'  By  whom  are  they  thus  committed? 
Assuredly,  by  the  judge,  '  with  the  consent  of  the  prisoner, 
and  for  reasons  appearing  to  the  court.'  At  all  times. in 
and  out  of  court  the  judge  is  constructively  presiding  over 
the  jury,  and  protecting  their  deliberations  from  all  im- 
proper influence.  No  one,  but  he,  has  charge  of  them  in 
court ;  and,  upon  adjournment,  it  is  his  order  by  which  they 
are  committed  for  the  night,  or  interval  between  the  ad- 
journment and  sitting,  to  the  sheriff :  and  it  is  by  his 
authority  the  oath  is  required  of  the  officer  who  is  to  keep 
them.  It  is  only  from  the  necessity  of  the  case,  and  the 
fitness  of  things,  they  are  taken  from  him  during  the  ad- 
journment of  his  court.  From  this  theory  of  his  office  in 
jury  trials,  it  can  scarcely  be  that  his  oversight  and  superin- 
tendence are  suspended  by  adjournment  of  the  court.  He 
has   many   legitimate   modes  while  in   session,  through  in- 


376  CUSTODY  AND  SEPARATION  OF  JUROKS.       [ClI.  XVI. 

structions  and  charges,  to  influence  their  finding,  but  no 
scmbhincc  of  authority  to  a[)proach  them  corruptly  ;  so  in 
his  recess  he  can  have  his  eye  upon  them,  and  exert  a  su- 
perintendence over  them  and  their  custodians,  so  as  to 
maintain  the  purity  of  the  trial,  and  the  sanctity  of  their 
deliberations  ;  but  by  no  means  to  tamper  with  their  ver- 
dict, or  seek  privately  to  influence  them.  The  possibility 
that  such  abominable  practices  may  occur  on  or  oft"  the 
bench,  cannot  l)e  accepted  as  a  reason  for  doubting  or  im- 
pairing the  authority  which  the  law  gives  a  judge  for  quite 
a  different  purpose,  namely,  to  advance  rather  than  pervert 
the  course  of  justice.  1  am,  therefore,  of  opinion  that  it  is 
in  the  competency  of  a  judge  out  of  court,  as  necessity  or 
occasion  may  require,  to  direct,  superintend  and  charge 
jurymen,  and  other  officers  of  the  court,  in  matters  pertain- 
ing to  their  official  conduct  and  behavior  out  of  court ;  so 
that  a  disol^edience  of  his  lawful  commands,  in  such  respect,, 
would  be  an  obstruction  to  the  business  of  the  court,  and  ;t 
contempt  thereof."  ^ 

§  326.  Form  of  the  Oatli. —  The  form  of  the  oath  to  be 
administered  to  the  officer  will,  it  is  believed,  be  found  pre- 
scribed by  statute  in  most,  if  not  all,  of  the  States.  In  the 
leading  English  case  on  the  subject,  the  bai-liffs  were  sworn 
well  and  truly  to  keep  the  jury,  and  neither  to  speak  to 
them  themselves,  nor  suffer  any  other  person  to  speak  to 
them,  touching  any  matter  relative  to  this  trial.-  The  form 
of  the  oath,  as  quoted  by  Mr.  Bishop  ^  from  an  English 
work  published  in  1828,^  is:  "You  shall  well  and  truly 
keep  this  jury  in  some  convenient  and  private  place,  without 
meat,  drink  or  fire  (candle-light  excepted)  ;  you  shall  not 
suffer  any  person  to  speak  to  them,  neither  shall  you  speak 
to  them  yourself,  unless  it  be  to  ask  them  if  they  are  agreed 
on  their  verdict,  without  leave  of  the  court.     So  help  you 

1  Philips  V.  Com.,  19  Gratt.  485,  533.      In  support  of   this  view,  the- 
court  quoted  from  Barrett  v.  State,  1  Wis.  175. 
2Rexv.  Stone,  6T.  R.527. 
8  1  Bish.  Cr.  Proc.  (2(i  Ed.),  §  991. 
*  Gude's  Crown  Prac.  584. 


§   327.]  WHAT  THE  RECORD  SHOULD  SHOW.  377 

God."  The  form  ojiven  by  Chitty,^  from  old  authorities,  is  : 
"  You  shall  swear  that  you  shall  keep  this  jury  without  meat, 
drink,  fire  or  candle ;  you  shall  suffer  none  to  speak  to 
them,  neither  shall  you  speak  to  them  yourself,  but  only 
to  ask  them  whether  they  are  agreed  :  So  help  you  God." 
The  rule  of  the  English  common  law  about  keeping  juries 
without  meat,  drink,  fire  or  candle,  is  altogether  disre- 
garded in  this  country,  and  the  oath  which  is  given  to  the 
officer  who  takes  charge  of  the  jury  in  a  criminal  case  is, 
no  doubt,  in  all  cases  modified  accordingly.  In  Missouri  in 
cases  of  felony,  the  officer  who  is  appointed  to  take  charge 
of  the  jury  "  shall  be  sworn  to  keep  them  together  in  some 
private  or  convenient  room  or  place,  and  not  permit  any 
person  to  speak  or  communicate  with  them,  nor  do  so  him- 
self, unless  by  order  of  the  court,  or  to  ask  them  whether 
they  have  agreed  upon  their  verdict."  ^  The  criminal  code  of 
Illinois  declares  that  "  when  the  jury  retire  to  consider 
of  their  verdict  in  any  criminal  case,  a  constable  or  other 
officer  shall  be  sworn  or  affirmed  to  attend  the  jury  to  some 
private  and  convenient  place,  and,  to  the  best  of  his  ability, 
keep  them  together,  without  meat  or  drink  (water  ex- 
cepted), unless  by  leave  of  the  court,  until  they  shall  have 
agreed  upon  their  verdict ;  nor  suffer  others  to  speak  to 
them  ;  and  that,  when  they  shall  have  agreed  upon  their  ver- 
dict, he  will  return  them  into  court."  ^  It  will  be  observed 
that  this  form  of  oath  is  defective  in  that  it  does  not  make 
the  officer  swear  that  he  will  not  speak  to  the  jury,  unless 
to  ask  them  if  they  are  agreed  upon  their  verdict.  It 
leaves  a  door  open  to  the  very  worst  species  of  lobbying 
with  the  jury. 

§  327.  AVliat  the  Record  should  show.^ — We  apprehend, 
—  svithout  going  into  the  question  at  length  here, —  that 
the  record  of  a  trial  in  a  nisi  prius  court  of  general  juris- 
diction, should  show,  affirmatively,  the  doing  of  those  things 

J  1  Chit.  Cr.  L.  63'2. 

2 1  R.  S.  Mo.  (1879)  §  1910. 

3  R.  8.  111.  1880,  p.  415,  §  435. 

*  See  in  this  connection  ante,  §  297,  and  following  sections. 


378  CUSTODY  AND  SEPARATION  OF  JUIlOIiS.        [CH.  XVI. 

which  arc  so  essential  to  the  validity  of  the  proceeding 
that  they  are  to  be  deemed  jurisdictional  in  their  nature. 
All  other  things  which  the  court  ought  to  have  done,  are 
presumed,  in  the  silence  of  the  record,  to  have  been  done. 
Thus,  in  an  ordinary  case  at  law,  civil  or  criminal,  it  is  ob- 
viously essential  that  the  record  show  that  there  was  a 
judge  presiding;  if  it  were  an  ordinary  trial  by  jury,  that 
the  jury  consisted  of  twelve  men  duly  sworn  ;  if  the  names 
of  eleven  only  or  thirteen  are  shown,  it  is  not  doubted  that 
in  cases  of  felony  at  least  the  verdict,  and  the  judgment 
thereon,  Avould  be  void.  It  must  also  show  that  the  jury 
returned  a  v(n'dict  sufficiently  certain  for  judgment  to  be 
entered  upon  it,  and  that  judgment  was,  in  fact,  entered 
upon  such  verdict.  But  it  need  not  show  that  the  wituesses 
who  were  examined  in  the  case  were  regularly  sworn  ;  or  that 
the  depositions,  if  any,  which  were  read  upon  the  trial,  had 
!)een  taken  in  accordance  with  law  ;  or  that  the  counsel  for 
the  party  having  the  burden  of  proof  was  allowed  to  open 
and  close  the  case.  And  so  it  has  been  held,  where  there 
was  a  statute  requiring  the  judge  in  a  criminal  case,  before 
permitting  the  jury  to  separate  on  the  adjournments  of 
court,  to  admonish  them  not  to  converse  with  any  person 
about  the  case,  that  the  record  need  not  show  that  this  was 
<lone  ;  because  it  Avill  })e  presumed  that  the  judge  performed 
this  duty.^ 

In  the  old  case  of  Rex  v.  Stone,'^  the  court  being 
obliged,  owing  to  the  length  of  the  trial,  to  adjourn  from 
day  to  day,  made  a  solemn  entry  of  record  of  the  reasons 
which  rendered  such  adjournment  necessary  ;  of  the  manner 
in  which  the  jury  were  required  to  be  kept  together  ;  of  the 
oath  which  was  administered  to  the  bailiffs  in  charge  of 
them,  and  of  the  time  when  they  were  required  to  l)e  again 
before  the  bar  of  the  court.  This  has  been  thought  bv 
some  courts  to  afford  a  precedent  for  the  rule  that  when- 
ever, in  a  capital  case,  the  court  adjourns  from  day  to  day, 
its  record  must  affirmatively  show  the  manner  in  which  the 

I  Evans  v.  State,  7  Iiid.  271;  Caw  v.  People,  3  Neb.  357,  371. 
^6T.  R.  527  (179G). 


§   327.]  WHAT  THE  RECORD  SHOULD  SHOW.  379 

jury  were  kept  together,  and  the  oath  which  was  adminis- 
tered to  the  bailiff.^  But  modern  cases  do  not  uniformly 
uphold  this  rule ;  and  it  has  been  held  in  Illinois  that,  even 
in  capital  cases,  where  the  jury  are  not  allowed  to  separate, 
without  the  consent  of  the  State's  counsel  and  the  prisoner, 
from  the  commencement  of  the  trial  until  the  rendition  of 
their  verdict,  the  record  need  not  disclose  the  fact  that  the 
jury  were  kept  together,  or  even  that  they  were  placed  in 
charge  of  a  sworn  officer.  The  law  presumes,  unless  the 
contrary  appear,  that  the  court  performed  its  duty  in  this 
respect.'^  The  same  rule  was  laid  down,  after  consideration, 
in  Virginia.^  Tiie  contrary  was  early  held  in  Indiana.  It  was 
determined  that  unless  the  record  affirmatively  show  that  the 
jury  were  placed  in  the  custody  of  a  sworn  officer,  pending 
adjournments  from  day  to  day,  it  will  not  be  presumed  that 
this  was  done,  and  the  Supreme  Court  will,  for  this  reason, 
reverse  a  judgment  of  conviction.  "  Our  statute,"  says 
the  court,  "  requires,  in  cases  of  appeals  and  writs  of  error, 
that  the  Circuit  Courts  shall  cause  to  be  certified  to  us  a  full 
and  complete  transcript  of  all  its  proceedings  ;  and  this 
transcript  is  so  certified  ;  and  we  are  bound  to  believe  that 
nothing  more  was  done  than  what  is  certified  to  us  to  have 
been  done.  We  cannot,  by  intendment,  supply  any  mate- 
rial proceeding  which  is  entirely  omitted."  ^     But  where,  in 

*  It  has  even  been  so  held  in  civil  cases.  Van  Doren  v.  Walker,  2 
Caines,  ;57;5;  Beekman  v.  Wright,  11  Johns.  442.  But  these  were  cases 
where  the  trial  was  before  a  justice  of  the  peace,  and  it  is  not  probable 
that  the  court  would  have  refused  the  usual  intendment  if  the  case  had 
been  tried  in  a  court  of  record. 

2  McKinney  v.  People,  7  111.  540,  553.  "Nothing,"  says  the  court  in 
this  case,  "  is  more  important  in  the  prosecution  of  a  criminal  case,  than 
that  the  witnesses  against  the  prisoner  should  appear  in  open  court,  be 
sworn  in  the  presence  of  the  prisoner,  and  be  subjected  to  his  cross- 
examination.  Yet  these  facts  are  never  stated  on  the  record.  It  never 
appears  from  the  record  that  any  witnesses  were  sworn  at  all.  The  law 
presumes,  until  the  contrary  appears,  that  the  court  perfoi'uied  its  duty. 
It  then  l)y  no  means  follows,  because  the  record  is  silent  as  to  the  dis- 
position of  tlie  jury,  that  the  judge  neglected  so  important  a  duty  as  to 
keej)  that  jury,  cliarged  with  the  ]if(!  of  tlie  prisoner,  from  all  extrane- 
ous influences.'' 

3  Bennett  v.  Com.,  8  Leigii,  745,  761. 
-•Jones  V.  State,  2  Biackf.  475,  479. 


380  CUSTODY  AND  SEPARATION  OF  JURORS.         [CH.XVI. 

such  a  case,  there  was  an  entry  of  record  that,  on  the  ad- 
journniont  the  jury  were  phiccd  in  charge  of  a  bailiff  to  be 
returned  into  court  the  next  morning,  it  was  presumed  that 
the  jury  were  committed  to  the  care  of  the  bailiff  in  a  legal 
manner,  whatever  that  might  bo.^  And  now  it  seems  that  this- 
doctrine  is  overruled  in  that  State.-  For  stronji-er  reasons^ 
the  record  need  not  show,  in  a  civil  case,  that  when  the  jury 
retired  to  deliberate,  they  were  accompanied  by  a  swori» 
bailiff.'*  As  already  pointed  out,  if  the  jury  do  not  retire 
to  consider  of  their  verdict,  but  delil)erate  and  render  it 
while  sitting  in  their  seats,  it  is  not  necessary  for  the  record 
to  show  that  an  officer  was  sworn  to  attend  them.'* 

§  328.  Separation  creates  a  Presumption  against  Ver- 
dict.—  To  the  rule  already  stated,^  that  the  m^re  fact  of  a 
separation  is  not,  of  itself,  ground  for  a  new  trial,  there  is 
an  opposing  rule,  generally  applied  in  capital  cases.  Ac- 
cording to  the  former  rule,  a  separation  of  the  jury  is  no 
ground  for  a  new  trial,  unless  it  be  made  affirmatively  to 
appear  probable  that  the  jury  were  thereby  subjected  to  im- 
proper influence.  But  according  to  the  present  rule,  a  sep- 
aration will  be  ground  for  a  new  trial,  unless  it  affirmatively 
appear  that  they  were  not  thereby  subjected  to  any  improper 
influence.^     In  other  words,  under  the  former  rule  a  juror 

'  Dias  V.  State,  7  Blackf.  20. 

*  Evans  v.  State,  7  Ind.  271 ;  Anderson  v.  State,  28  Ind.  22.  25. 
2  Morris  v.  Graves,  2  Ind.  354. 

*  Fink  V.  Ilali,  8  Johns.  437;  Hatch  v.  Mann,  9  Wend.  2G2;  Meyer  v, 
Foster,  IG  Wis.  294. 

5  Ante,  §  313. 

«  McCann  v.  State,  9  Sined.  &  M.  465;  Woods  v.  State,  43  Miss.  364; 
Cornelius  V.  State,  12  Ark.  782,  809;  Coker  v.  State,  20  Ark,  53,  60;  Com- 
monwealth V.  MoCanl,  1  Va.  Cas.  271,  301 ;  Overbee  v.  Commonwealth , 
1  Rob.  (Va.)  756;  Westmoreland  v.  State,  45  Ga.  225,  282;  State  v.  Sher- 
bourne,  Dudley  (Ga.)  28:  McLain  v.  State,  10  Yerg;  241 ;  Stone  v.  State, 
4  Humph.  27,  38;  Cochran  v.  State,  7  Humph.  544;  Ilines  v.  State,  8 
Humph.  597;  Maher  v.  State,  3  Minn.  444,  447;  Philips  v.  (Common- 
wealth, 10  Gratt.  485;  People  v.  Backus,  5  Cal.  275  (overruled  in  Peo- 
ple V.  Bonney,  19  Cal.  426) ;  Russell  v.  People,  44  111.  508;  Junipertz  v. 
People,  21  111.  411 ;  McKinney  v.  People,  7  111.  540,  553 ;  McLean  v.  State, 
8  Mo.  153;  Eastwood  v.  People,  3  Park.  Cr.  R.  25,  48  (overruled  in  Ste- 
phene  v.  People,  19  N.  Y.  549)  ;   State  v.  Frank,  23  La.  An.  213;  Peopl  e 


§   328.]     CREATES  A  PRESUMPTION  AGAINST  VERDICT.  381 

may  separate  from  his  fellows  and  from  the  officer  iii  charge 
of  him,  and  still  the  presumption  of  right  acting  attends 
him,  just  as  it  attends  a  judge  when  he  quits  his  court-room 
and  mingles  with  his  fellow-citizens.  But  under  this  rule 
his  departure  from  the  custody  and  control  of  the  officer  is, 
prima  facie,  sufficient  to  vitiate  the  verdict.  Under  the 
former  rule  a  separation  shown  will  not,  in  the  absence  of 
other  circumstances  of  suspicion,  entitle  the  prisoner  to  a 
new  trial.  But  under  the  present  rule,  the  verdict  will  be 
set  aside  unless  the  prosecution  remove  the  presumption 
which  has  arisen  against  its  purity,  by  showing  that,  as  mat- 
ter of  fact,  the  absent  juror  was  not  tampered  with,  or,  at 
least,  by  producing  evidence  which  dispels  all  probabilities 
or  suspicions  of  tampering.  Contrasting  those  two  rules 
still  more  closely,  the  difference  between  them  will  be 
found  to  consist  in  the  measure  or  degree  of  proof  required 
to  overthrow  the  verdict.^ 

Y,  Shafer,  1  Utah  Ter.  260;  Com.  v.  Shields,  2  Bush.  81 ;  State  v.  Dolliujr, 
:$7  Wis.  396;  Kowan  v.  State,  30  Wis.  129;  Keeuan  v.  State,  8  Wis.  132; 
Madden  v.  State,  1  Kan.  341 ;  Wood  v.  State,  34  Ark.  341. 

1  Philips  V.  Commonwealth,  19  Gratt.  485,  540;  Keenan  v.  State,  8  Wis. 
132,  138;  State  v.  Prescott,  7  N.  11.  287,  292;  Jumpertz  v.  People,  21  111. 
•:^75,  413 ;  Eastwood  v.  People,  3  Park.  Cr.  K.  48 ;  }IcCann  v.  State,  9  Smed. 
<fe  M.  465.  "The  misconduct  of  the  constable  [in  allowing  a  juror  to 
-separate  from  his  fellows]  shifts  the  burthen  to  the  State  to  prove  the 
^ood  conduct  of  the  juror  at  the  time  in  question."  State  v.  Cucuel,  31 
N".  J.  L.  260.  "  We  think  that  in  trials  for  capital  offenses,  the  better 
rule  is,  to  hold  that,  unless  it  appears  that  the  separation  of  t^he  jurors 
was  not  followed  by  impi-oper  conduct  on  their  part,  nor  by  any  circum- 
stance calculated  to  exert  an  improper  influence  on  the  verdict,  the 
verdict  should  be  set  aside  in  case  of  a  conviction.  In  this  case,  there 
is  nothing  to  show  what  the  conduct  of  the  jurors  was  while  they  were 
separated  from  their  fellows,  and  we  think  it  was  incumbent  on  the  pros- 
ecution to  show  that  the  separation  worked  no  harm  to  the  plaintiff  in 
error.  We  must,  therefore,  for  this  reason,  order  a  new  trial."  Keenan 
V.  State,  8  Wis.  132,  13S.  "There  is  another  principle,"  saj's  the  Su- 
preme Court  of  New  Hampshire,  "  which  should  also  be  applied 
iu  a  criminal  case,  which  is,  that  where  there  has  been  an  im- 
proper separation  of  the  jury  during  the  trial,  if  the  verdict  is 
against  the  prisoner,  he  is  entitled  to  the  benefit  of  a  presumption  tha. 
the  irregularity  has  been  prejudicial  to  him;  and  that  it  is  incumbent, 
upon  the  government  to  show,  and  that  beyond  a  reasonable  doubt,  that 
the  prisoner  has  suffered  no  injury  by  the  departure  from  forms  ordina- 


382  CUSTODY  AND  SEPARATION  OF  JURORS.       [CH.XVI. 

§  329.  Distinction  between  Separation  with,  and  with- 
out Permission  of  the  Court. —  There  is  no  sound  distinc- 
tion between  the  case  where  a  juror  .separates  from  his  fel- 
lows with  i)erniission  of  the  court,  and  where  he  separates 
without  such  permission,  provided  he  is  in  both  cases 
equally  exposed  to,  or  exempt  from  improper  influences  ; 
though  doubtless  if  the  court  had  given  him  permission  to 
separate,  his  motives  would  be  less  liable  to  question,  and 
his  affidavit,  exculpating  himself  from  any  improper  com- 
munication, would  be  more  readily  received.  It  is  the  fact 
of  separation  which  exposes  the  juror  to  contamination,  and 
creates  a  presumption  against  the  purity  of  his  verdict,  and 
not  the  circumstance  that  the  separation  was  authorized  or 
unauthorized  ;  and  in  general  it  may  be  said  that  the  rule  is 

rily  pursued  iu  the  administration  of  justice.  The  prisoner  is,  in  such 
case,  entitled  as  matter  of  right  to  require,  in  the  first  instance,  a  com- 
pliance with  the  ordinary  forms  provided  b}'  law  to  secure  to  him  a  fair 
and  impartial  trial ;  and  if  the  guards  provided  for  his  security  are  neg- 
lected or  disregarded,  he  is  at  least  entitled  to  require  at  the  hands  of 
the  government,  satisfactory  evidenve  that  he  has  not  received  detri- 
ment by  reason  of  such  neglect,  and  is  not  to  be  put  to  show  affirma- 
tively, that  such  departure  from  the  customary  mode  of  trial  has  been 
the  probable  cause  of  his  conviction.  The  shield  which  the  law  has  pro- 
vided would  fall  far  short  of  affording  him  the  protection  intended,  if  it 
might  be  thrown  aside  at  pleasure,  and  he  have  no  right  to  complain,  un- 
less he  could  prove  that  the  want  of  it  had  been  actually  prejudicial  to  his 
case — a  matter  which  it  might,  inmau}^  cases,  be  very  difficult  to  prove, 
notwithstanding  such  was  the  fact.  He  has  the  right,  therefore,  to  call 
upon  the  officers  of  the  government,  in  such  case,  before  they  demand 
judgment,  to  show  that  the  irregularity  in  the  trial  has  not  been  the 
means  of  injustice  in  the  verdict.  As  the  law  humanely  presumes  his 
innocence  in  the  first  instance,  until  his  guilt  has  been  proved  beyond  a 
reasonable  doubt,  so  it  will  presume  that  a  departure  from  the  mode 
prescribed  by  law  for  his  trial  has  been  to  his  prejudice,  until  the  con- 
trary is  shown  by  the  same  degree  of  evidence."  State  v.  Prescott,  7  N. 
H.  287,  292,  opinion  by  Parker,  J.  "  It  is  not  enough,"  say  the  Supreme 
Court  of  Illinois,  "  to  say  that  the  probabilities  are  that  no  such  fatal  mis- 
chief was  wrought.  It  possibly  might  have  been.  We  do  not  know  and 
cannot  say  that  it  was  not.  And  unless  we,  from  this  bench,  can  tell  the 
prisoner  that  during  these  many  interviews  with,  we  know  not  whom,  no 
harm  was  done  him,  nothing  was  said  to  his  prejudice,  no  outside  in- 
fluences brought  to  bear  against  him,  then  we  are  bound  to  grant  him  a 
new  trial."  Jumpertz  v.  People,  21  111.  375,  413.  Three  judges  dis- 
sented. 


§   330.]  SEPARATION  IN  CHARGE  OF  OFFICER.  383 

the  same  where  the  juror  who  separates  from  his  fellowss 
does  so  with  the  permission  of  the  court,  as  where  he  does 
it  without  permission.^  Thus,  in  a  late  case  in  Wisconsin, 
the  court  permitted  a  jury  in  a  capital  case  to  separate 
during  the  trial.  This  was  assigned  as  ground  for  a  new 
trial.  Affidavits  of  the  jurors  showed  that  they  obeyed  the 
instructions  of  the  court  not  to  converse  with  reference  to 
the  trial,  and  not  to  listen  to  others  discussing  it ;  that  they 
said  and  did  nothing  to  the  prejudice  of  the  prisoner,  and 
that  no  circumstance  occurred  to  exert  an  improper  influ- 
ence on  their  verdict.  Other  affidavits  went  to  show  that 
the  jury  was  well-behaved  generally,  and  appeared  faithful 
to  their  duty.  But  the  affidavits  of  the  jurors  did  not 
deny  that  while  they  were  separated  they  had  heard  expres- 
sions of  opinion  concerning  the  trial  or  the  guilt  of  the 
prisoner.  It  was  held  that  these  affidavits  were  not  suffi- 
cient in  law  to  show  that  the  prisoner  was  not  prejudiced 
by  the  separation.^ 

§  330.  Where  the  Separating  Jnror  is  attended  by  the 
Proper  Officer. —  Another  distinction  relates  to  the  case  of 
a  juror  separating  from  his  fellows  attended  by  the  proper 
officer,  and  one  separating  without  the  attendance  of  such 
officer ;  and  the  rule  here  is  declared  to  be  that  the  fact  that 
a  juror  separates  from  his  fellows,  without  an  imperious 
necessity,  but  for  an  instant,  perhaps,^  will  not  vitiate  the 
verdict  if  he  was  attended  by  the  proper  officer,  nor,  in  the 
absence  of  circumstances  of  suspicion,  be  ground  for  a  new 
trial,  although,  if  the  proper  officer  were  not  in  attendance, 
a  new  trial  might  be  granted  under  the  same  circumstances. 
And  the  reason  of  the  distinction  is  plain.  Where  the 
juror  separates  from  his  fellows  and  goes  away  alone,  there 
is  no  testimony  but  his  own  to  clear  him  from  the  suspicion 
of  having  held  improper  communications  ;  and  his  own  tes- 

1  Parsons  v.  Huff.  38  Me.  137. 

2  State  V.  Dolling,  37  "Wis.  396. 

*  In  the  particular  case,  to  see  a  horse  taken  care  of ;  to  procure  great 
coats,  a  cushion,  etc.,  from  the  bar  of  the  tavern;  to  wash  at  the  tavern 
porch,  etc. 


384  CUSTODY  AND  SEPARATION  OF  JURORS.       [CH.  XVI. 

timony  is  always  open  to  suspicion  ;  since  a  juror  who  will 
violate  his  sworn  duty  by  separating  from  his  fellows  with- 
out necessity  will  be  not  unlikely  to  commit  perjury  to 
screen  himself  from  the  consequences  of  his  wrong  doing. 
But  no  such  suspicion  attaches  to  the  testimony  of  the 
officer.  In  the  former  case  there  is  the  utmost  facility  of 
corrupting  the  juror ;  in  the  latter,  a  bare  possibility.  In 
the  former,  it  would  be  extremely  difficult,  if  not  impos- 
sible to  procure  proof  of  the  guilt  of  the  juror,  except 
from  a  party  to  the  crime  ;  in  the  latter,  proof  of  even  an 
attempt  at  tampering  is  always  at  hand  from  an  accredited 
source.^ 

§  331.  Distinction  in  this  regard  between  Capital  and 
non-Capital  Felonies. —  Two  courts,  and  possibly  more, 
take  a  distinction  in  this  regard  between  capital  and  non- 
capital felonies.  Possibly  in  some  States  such  a  distinction 
may  be  traced  to  statutory  enactments.  It  does  not  obtain 
in  the  English  courts,  whose  rules  of  criminal  procedure,  as 
already  stated,  became  established  at  a  time  Avhen  nearly  all 
felonies  were  capital.  It  has  been  recognized  in  Florida  to 
the  extent  that  in  capital  cases  "  the  conduct  of  the  absent 
juror  should  be  subjected  to  the  most  rigid  scrutiny,  in 
order  to  ascertain  if  it  was  blameless  while  separated  from 
his  fellows,  and  the  verdict  should  only  be  allowed  to  stand 
when  the  prosecution  can  show  that  there  was  no  opportu- 
nity to  tamper  with  the  juror,  or  to  influence  him  in  finding 
his  verdict.  In  all  other  cases  than  capital  felonies  the 
verdict  should  stand,  unless  the  party  against  whom  it  was 
given  can  show  that  improper  influences  were  used  to  pro- 
duce it."^  In  Louisiana  such  a  distinction  was  recognized, 
but  it  related  to  the  period  of  the  trial  at  which  the  separa- 
tion took  place,  and  it  was  said  to  be  this :  In  capital  cases, 
a  separation  of  the  jury  without  the  consent  of  the  pris- 
oner, after  Uie  jury  have  been  sworn,  is  fatal  to  the  regu- 
larity of  the  proceedings.     In  such  cases  misconduct  and 

*  Thomas  v.  Com.,  2  Va.  Cas.  479.    See  also  the  language  of  Nelson, 
J.,  in  Com.  v.  McCaul,  1  Va.  Cas.  302. 
2  State  V.  Madoil,  12  Fla.  151,  159. 


§   332,]  AT  WHAT  STAGE  OF  TRIAT^.  385 

abuse  will  always  be  presumed.^  But  in  cases  not  capital 
the  court  may,  in  its  discretion,  permit  a  separation  of  the 
jury  after  they  have  been  impanelled  and  sworn,  and  before 
they  have  received  the  charge  of  the  court. •^  But  in  all 
criminal  cases,  capital  or  otherwise,  no  separation  of  the 
jury  after  they  receive  the  charge  of  the  court  is  allowed, 
and  such  a  separation  will  vitiate  the  verdict.^  But  these 
decisions  must,  it  would  seem,  be  limited  by  another  rule 
which  obtains  in  the  same  State,  namely :  that  the  Supreme 
Court  has  no  power,  under  the  constitution  of  the  State,  to 
inquire  whether  the  discretion  of  the  court  below,  in  refus- 
ing a  new  trial  upon  grounds  set  up  by  affidavits,  has  been 
properly  exercised,  even  in  capital  cases.*  Unless,  there- 
fore, the  fact  of  separation  or  other  misconduct  appears 
from  the  record  proper,  as  it  did  in  State  v.  Populus,^  the 
refusal  of  a  new  trial  will  not  be  ground  for  reversing  the 
judgment, 

§  332.  Distinctions  with  Reference  to  the  Stage  of  the 
Trial  at  which  a  Separation  will  vitiate. —  There  are  cer- 
tain distinctions  with  reference  to  the  period  or  stage  of 
the  trial  at  which  a  separation  will  vitiate,  which  ought 
carefully  to  be  borne  in  mind. 

(1.)  Separation  before  the  Jury  are  charged  with  the 
Prisoner. —  The  common-law  rule  which  has  already  been 
stated,^  that  in  cases  of  felony  any  separation  of  the  jury, 
unexplained,  will  be  ground  for  a  new  trial,  does  not  apply 
until  the  jury  has  been  duly  impanelled,  sworn,  and  charged 
with  the  case.^  It  therefore  does  not  apply  until  the  whole 
number  of  jurors  who  are  to  sit  in  the  particular  case  are 

1  State  V.  Hornsby,  8  Rob.  (La.)  554;  State  v.  Desmond,  5  La,  An. 
;399;  State  v.  Frank,  23  La.  An.  213;  State  v.  Evans,  21  La.  An.  321. 

2  State  V.  Crosby,  4  La.  An.  434. 

8  State  V.  Populus,  12  La.  An.  710. 

*  State  V.  Hunt,  4  La.  An.  438;  State  v.  Brette,  6  La.  An.  652,  657; 
State  v.  Tucker,  10  La.  An.  501. 

6  12  La.  An.  710. 
8  Ante,  §  328. 

7  State  V,  Burns,  33  Mo.  483;   Epes'  Case,  5  Gratt.  676,  681;  Tooel's 
Case,  11  Leigh,  714. 

(25) 


oS(i  CUSTODY  AND  SEPARATION  OF  JURORS.        [cil.  XVI. 

elected  and  swoi-ii  ;  and  it  will  be  no  crroi'  to  allow  those 
elected  and  sworn  in  such  a  case  to  separate  without  being 
in  charge  of  an  ofliccr,'  although  several  days  may  be  con- 
sumed in  getting  a  jury.-  If,  therefore,  the  regular  panel 
is  exhausted  before  getting  a  jury,  it  will  be  no  error,  even 
in  a  capital  case,  for  the  court,  while  the  sheriff  is  engaged 
in  summoning  additional  jurors,  to  permit  those  who  have 
been  selected  to  disperse,  with  the  usual  injunction  not  to 
communicate  with  any  one  about  the  case.^  The  rule  has 
been  extended  even  further ;  and  it  has  been  held  in  a  case 
of  felony  not  capital,  that  after  a  jury  is  impanelled  and 
sworn,  and  before  any  evidence  is  given,  a  separation  of 
some  of  them  from  their  fellows  is  no  cause  for  settinii 
aside  a  verdict  of  conviction,  especially  if  the  separation  is 
momentary,  so  that  tampering  with  the  jurors  is  improb- 
able.'' 

1  Marshall,  C.  J.,  in  Aaron  Burr's  Case,  1  Burr's  Trial,  382;  Martin's 
Case,  2  Leigh,  745. 

»  Epes'  Case.  5  Gratt..  681. 

^  State  V.  Burns,  33  Mo  483.  Thus,  on  the  trial  of  an  indictment  for  a 
felon}%  eight  jurors  were  elected  and  sworn,  and  three  elected  and  not 
sworn.  One  who  liad  been  elected  and  sworn  separated  from  the  rest, 
went  off  some  miles,  and  stayed  several  hours.  The  other  ten  were  put 
in  charge  of  the  sheriff  to  be  kept  together  and  separate  from  other  per- 
sons, till  the  ensuing  morning.  The  absconding  juryman  was  taken  by 
an  attachment,  and  kept  during  the  same  night  with  the  other  jurj'men, 
but  there  appears  to  have  been  no  conversation  among  them  with  refer- 
ence to  the  case.  On  the  following  morning,  by  allowance  of  the 
court,  this  juryman  was  challenged  for  cause,  and  set  aside.  The  jury 
was  then  completed,  a  trial  was  had,  and  the  prisoner  was  found  guilty. 
It  was  held  that  the  separation  of  the  absconding  juryman  from  his  fel- 
lows, and  his  subsequent  association  with  them  before  he  was  struck 
from  the  panel,  did  not  vitiate  the  verdict,  and  was  no  ground  for  a  new 
trial.    Tooel  v.  Com.,  11  Leigh,  714. 

*  Martin  v.  Com.,  2  Leigh,  745.  "  No  case,"  said  May,  J.,  "  has  been 
cited,  and  we  have  found  none,  in  which  a  separation  of  the  jury  before 
any  evidence  has  been  introduced,  has  been  held  to  be  a  sufficient  cause 
to  set  aside  the  verdict.  Coke,  Foster  and  Blackstone  say  that,  after  the 
jury  are  sworn  and  charged  with  the  prisoner,  and  after  evidence  has 
been  given,  the  jury  cannot  be  discharged  or  separated."  In  Hardy's 
Case,  24Ho\veirs  State  Trials,  199,  it  is  said  by  Chief  Justice  Eyre,  "  It  is 
undoubtedlj'  a  general  rule  that  there  is  to  be  no  adjournment,  and  no 
separation  of  the  jury  after  the  evidence  is  entered  upon,  till  the  jury 
have  given  their  verdict." 


§   332.]  AT  WHAT  STAGE  OF  TRIAL.  387 

In  Mississippi,  Avhere  a  stringent  rule  obtains  in  regard  to 
the  separation  of  jurors  in  capital  cases,  the  foregoing  rule 
has  been  denied,  not  u[)on  authority,  but  upon  cogent  rea- 
sons, which  are  obvious  to  every  one :  that  as  soon  as  it  is 
known  that  a  person  is  to  be  a  juror  in  a  particular  case, 
he  is  just  as  liable  to  be  tampered  with  before  the  trial 
commences  as  after. ^ 

(2.)  Separation  before  the  Jury  have  retired  to  deliber- 
ate.—  In  some  States  a  separation  of  the  jury  pending  the 
adjournments  or  recesses  of  the  court  during  the  progress 
of  a  trial  will  not,  in  the  absence  of  circumstances  raisins: 
a  suspicion  of  abuse  or  prejudice,  be  ground  for  a  new 
trial,  even  in  felonies''  which  are  capital.^  Some  of  these 
courts,  perhaps  following  the  lead  of  statutes,  have  gone  to 
the  opposite  extreme  in  requiring  juries  in  capital  felonies,'* 
to  be  rigorously  kept  together  and  isolated  after  retiring  to 
deliberate  on  their  verdict.  The  rule  that  jurors  are  not 
to  be  permitted  to  separate  after  retiring  from  the  bar  of  the 
court  until  they  have  agreed  upon  and  delivered  their  verdict, 
except  in  cases  where  they  are  allowed  to  make  up  and  seal 
their  verdict,  and  then  separate,^  applies  to  all  cases  whether 
civil  or  criminal.''  The  rule  that  the  court  may,  in  its  dis- 
cretion, allow  a  jury  to  disperse  in  civil  cases  ^  and  in  trials 
for  misdemeanor,^  has  reference,  it  is  believed,  only  to  their 
disposition  pending  recesses,  for  food  and  refreshment  and 

1  McQnilleii  v.  State,  8  Smed.  &  M.  587,  596.  j 

2  Berry  v.  State,  10  Ga.  511. 

3  State  V.  Andei'son,  2  Bailey.  565;  Bilanski  v.  State,  3  Minn.  427; 
Stephens  v.  People,  19  N.  Y.  519  (supra,  §  318,  siibsec.  7)  ;  Sargent 
V.  State,  11  Ohio,  472;  Davis  v.  State,  15  Ohio,  72,  83.  So  by  statute  in 
Nebraska  and  Indiana,  if  the  jury  are  projjerly  admonished.  Caw  v. 
People,  3  Neb.  357;  Evans  v.  State,  7  Ind.  271  (overruling  on  this  point, 
Jones  V.  State,  2  Blaekf.  475).  In  Iowa,  it  is,  by  statute,  discretionarj' 
with  the  court  to  permit  them  to  separate  pending  the  trial.  (Code  of 
Iowa,  1851,  §  3011) :  State  v.  Gillick,  10  Iowa,  98. 

*  Daniel  v.  State,  56  Ga.  653;  Mahcr  v.  State,  3  Minn.  444;  State  v. 
Parrant,  16  Minn.  178,  181. 

*  See  the  following  sections. 

^  See  Morrow  v.  Comrs.,  21  Kan.  484,  516. 
''Ante,  §314. 
«  Ante,  §  317. 


388  CUSTODY  AND  SEPARATION  OF  JURORS.       [CH.  XVI. 

adjournments  from  clay  to  day,  before  they  retire  from  the 
bar  of  the  court  to  consider  of  their  verdict.  This  is  the 
general  rule,  but  there  may  b^  exceptions  to  it. 

§  333.  Returning  Sealed  Verdicts  in  Civil  Cases. — 
Thus,  it  has  been  often  held  in  civil  cases,  in  conformity 
with  what  has  already  been  stated,  that  the  fact  that  the 
jury  separate  after  having  agreed  upon  their  verdict,  but 
before  they  have  delivered  it  in  court,  is  no  ground  for  a 
new  trial,  although  it  may  subject  the  jurors  themselves  to 
punishment.^  It  equally  follows  that  the  judge  may  permit 
this  to  be  done,  and  that  he  may,  if  occasion  require  it,  send 
the  jury  out  with  directions  to  return  a  sealed  verdict  to  the 
clerk,  and  adjourn  the  court  until  the  next  dajs  or  other- 
wise.^ Or  he  may  permit  them  to  disperse  for  dinner,  and 
to  bring  in  a  sealed  verdict  after  the  noon  recess.^  Accord- 
ingl}^  it  seems  to  be  a  general  rule  of  practice  in  civil  cases 
that  where  the  jury  agree  upon  a  verdict,  write  it  out,  seal 
it  up,  deliver  it  to  an  officer  of  the  court,  and  then  disperse 
until  the  next  meeting  of  the  court,  when  they  appear  and 
assent  to  it  as  their  verdict,  it  will  be  taken  to  be  a  good 
verdict,  notwithstanding  the  separation,*  especially  where 
neither  of  the  parties  objects  to  this  mode  of  procedure  at 
the  tirae.^  If,  for  any  reason,  they  are  afterwards  sent  out, 
and,  being  so  out,  they  fail  to  agree,  the  party  in  whose  favor 
the  sealed  verdict  was  rendered  will  be  entitled  to  judgment 

1  Sartor  v.  McJunkin,  8  Rich.  L.  451;  Evans  v.  Foss,  49  N.  H.  490, 
497;  Brown  v.  McConnel,  1  Bibb,  -205;  Horton  v.  Horton,  2  Cow.  589; 
Saiiders  v.  State,  2  Iowa,  230;  Cook  v.  Walters,  4  Iowa,  72;  Heiserv. 
Van  Dyke,  27  Iowa,  359;  Kagland  v.  Wills,  G  Leigh,  1;  Sutliff  v.  Gil- 
bert, 8  Ohio,  405;  Smith  v.  Harrow,  3  Bibb,  446;  James  v.  State,  use, 
etc.,  55  Miss.  57. 

2  Bellows,  C.  J.,  in  Evans  v.  Foss,  49  N.  H.  490,  497;  Crocker  v.  Hoff- 
man, 48  Ind.  207.  Especially  if  no  objection  is  made  at  the  time.  Bos- 
ley  V.  Farquar,  2  Blackf.  61.  Or  if  it  do  not  appear  that  the  jury  actually 
separated  before  the  verdict  was  brought  in.  Ihid.^  Lucas  v.  Marine,  40 
Ind.  289.  When  (he  assent  of  counsel  to  such  a  direction  will  be  inferred. 
Parmlee  v.  Sloan,  37  Ind.  469, 

3  Welch  V.  Welch,  9  Rich.  L.  133 ;  Harter  v.  Seaman,  3  Blackf.  27. 
••  Cook  V.  Walters,  4  Iowa,  72;  Ileiser  v.  Van  Dyke,  27  Iowa,  359. 

*  High  V.  Johnson,  28  Wis.  72 ;  Douglass  v.  Tousey,  2  Wend.  352. 


§   334.]  SEALED  VERDICTS  IN  OASES  OF  FELONY.  389 

on  the  same,  provided  it  is  sufficiently  certain  to  tliat  end.^ 
§  334.   Returning  Sealed  Verdicts  in  Cases  of  Felony. — 

This  practice  has  not  been  generally  admitted  in  cases  of 
felony;  the  old  law  was  to  the  contrary  in  such  cases. 
Thus,  it  was  said  by  Lord  Cokie  :  "  By  the  law  of  England, 
a  jury,  after  their  evidence  given  upon  the  issue,  ought  to 
be  kept  together  in  some  convenient  place,  without  meat  or 
drinke,  fire  or  candle,  which  some  bookes  call  an  imprison- 
ment, and  without  speech  with  any,  unlesse  it  be  the  bailife, 
and  with  him  only  if  they  be  agreed.  After  they  be  agreed 
they  may,  in  causes  between  party  and  party,  give  a  verdict, 
and  if  the  court  be  risen,  give  a  privy  verdict  before  any 
of  the  judges  of  the  court,  and  then  they  may  eat  and 
drinke,  and  the  next  morning,  in  open  court,  they  may  either 
affirm  or  alter  their  privy  verdict,  and  that  which  is  given 
in  court  shall  stand.  But  in  criminall  cases  of  life  or  mem- 
ber the  jury  can  give  no  privy  verdict,  but  they  must  give 
it  openly  in  court.  And  hereby  appeareth  another  divi- 
sion of  verdicts,  viz.,  a  publique  verdict  openly  given 
in  court,  and  a  privy  verdict  given  out  of  the  court, 
before  any  of  the  judges,  as  is  aforesaid."^  This, 
we  apprehend,  remains  the  rule  at  the  present  day, 
though  two  or  three  instances  are  found  to  the  con- 
trary. Thus,  in  such  a  prosecution  in  Iowa,  the  jury,  after 
receiving  the  charge  of  the  court,  retired,  made  up  their 
verdict,  and  then  separated,  and  afterwards  returned  it  into 
court.  It  was  held  a  good  verdict,  notwithstanding  the 
fact  that  during  their  separation  some  of  them  were  heard 
talking  about  the  case.^  So,  in  Ohio  it  is,  or  at  least  was, 
the  practice  for  the  jury,  in  criminal  cases,  to  make  up  and 
seal  their  verdict,  and  then  separate  ;  *  but  it  was  required 
(and  we  suppose  it  is  the  rule  everywhere)  that  all  of  them 
be  present  at  the  time  of  its  delivery  in  court,  in  order  that 

1  Miller  v.  Mabou,  6  Iowa,  456. 

2  Co.  Litt.  227.  b. 

»  Sanders  v.  State,  2  Iowa,  230,  278.      See  also  Willing  v.  Svvasey,  1 
Browne  (Pa.)  123. 
*  State  V.  Eugle,  13  Ohio.  490.     See  Sutliff  v.  Gilbert.  8  Ohio.  405. 


390  CUSTODY  AND  SEPARATION  OF  JURORS.       [CH.  XVI. 

that  they  might  be  polled  if  the  prisoner  desired  it.^  But 
in  Massachusetts,  where  a  stricter  practice  obtains,  where  a 
jury  were  instructed  that,  after  having  agreed  upon  their 
verdict,  they  might  seal  it  up,  separate,  and  bring  it  into 
court  the  next  morning,  and,  after  so  agreeing,  they  neg- 
lected to  commit  it  to  writing,  but  separated,  and,  on  coming 
into  court  the  next  morning,  were  directed  by  the  judge  to 
retire  and  reduce  their  verdict  to  writing,  which  they  did, 
the  verdict  Avas  not  permitted  to  stand. ^ 

§  335.  Dangers  of  this  Practice  —  Feigned  or  Altered 
Verdicts. —  It  is  believed,  however,  that  this  practice  is 
more  dangerous  in  civil  than  in  criminal  cases,  and  the  rea- 
son is  this :  In  criminal  cases  the  verdict  is  either  guilty  or 
not  guilty,  and  there  is  no  diflSculty  in  reducing  it  to  a  cer- 
tainty in  either  case  ;  but  in  civil  cases  the  verdict  is  often 
more  or  less  complex,  and  juries  are  much  more  liable, 
throujrh  ijrnorance  or  inadvertence,  to  return  uncertain  or 
informal  verdicts,  upon  wiiich  no  judgment  can  be  rendered. 
In  this  event,  one  of  two  things  must  happen  :  either  there 
must  be  a  new  trial ,^  and  the  whole  labor  and  expense  of 
the  trial  must  go  for  naught,  or  else  the  jury  must  be  again 
sent  out,  wqth  directions  to  perfect  their  verdict.  But  in 
the  meantime,  supposing  that  their  labors  were  at  an  end, 
they  have  mingled  with  the  public,  conversed  with  various 
persons  about  the  case,  and  received  impressions  concerning 
it  other  than  those  received  in  the  course  of  the  trial.  These 
new  impressions  mingle  with  their  new  verdict,  and  all  the 
evils  of  permitting  the  jury  to  separate  after  having  been 
charged  with  the  case,  and  before  agreeing  upon  their  ver- 
dict, have  been  produced.  Again:  instances  have  been 
known  where  the  jury,  unable  to  agree,  but  desiring  to  gain 
the  privilege  of  separating,  have  made  up  a  feigned  verdict, 
delivered  it  to  their  bailiff,  and  then  dispersed.  In  such  a 
case  they  will  not  be  again  sent  out  to  deliberate,  but  will 

1  Sargent  v.  State,  11  Ohio,  472. 
'  Coinmoiuvealth  v.  Dorus,  108  Masp.  488. 

3  As  in  Sage  v.  Brown.  34  Ind.  464.  Compare  Vater  v.  Lewis,  3P 
Ind. 288. 


§   336.]  AMENDING  SEALED  VERDICTS.  391 

he  discharged  from  the  case  and  punished.^  For  like  rea- 
sons, if  the  jury,  after  having  once  agreed  and  put  their 
verdict  under  seal,  shall  separate,  and  subsequently  meet  in 
their  room  and  change  their  sealed  verdict,  such  altered  ver- 
■dict  cannot  with  propriety  lay  the  foundation  of  a  judg- 
ment.^ 

§  33(*.  Amending  Sealed  Verdicts. —  When  a  sealed  ver- 
dict so  rendered,  on  being  opened  in  court,  is  found  to  be 
informal  or  defective,  the  jury  cannot  be  sent  out  to  renew 
their  deliberations  upon  the  main  questions  in  controversy, 
-or  to  make  a  substantially  new  verdict;^  though  it  is  com- 
petent for  them  to  retire  and  amend  it  in  any  matter  not 
relating  to  the  main  question  in  controversy^'*  Thus,  in  an 
action  of  trespass  for  taking  the  plaintiff's  goods,  where  the 
verdict,  thus  made  up  and  returned,  was  in  favor  of  the 
plaintiff  for  the  possession  or  full  value  of  the  goods,  it  was 
not  error  for  the  court  to  direct  them  to  amend  their  verdict 

1  See,  for  instance,  White  v.  Martin,  3  111,  69. 

2  Sutliff  V.  Gilbert,  8  Ohio,  405-408, 

3  Sargent  v.  State,  11  Ohio,  472,  Some  old  cases  in  New  York  indi- 
cate a  contrary  practice  (Bunn  v,  Hoyt,  3  Johns,  255;  Douglass  v.  Tou- 
sey,  2  Wend,  352),  but  they  are  not  generally  followed,  '•  The  practice 
of  sending  out  a  jury,"  says  Metcalf,.!,,  "■  when  they  return  alluding  that 
is  absurd  or  defective,  has  existed  more  than  four  hundred  years.  We 
find  in  the  year  book,  11  H.  4,  2,  pi,  3,  that  where,  in  a  writ  of  con- 
spiracy against  two,  the  jury  found  one  guiltj'  and  the  other  not  guilty, 
thejr  were  told  by  the  judge  that  their  finding  was  contradictory;  that 
if  one  was  not  guilty,  the  other  could  not  be  guilty  in  a  charge  of  conspir- 
acy, and  that  the}^  had  better  reconsider  their  verdict;  whereupon  thej- 
were  taken  back,  and  afterwards  they  returned  and  found  both  guilty. 
See  also  2  Hawk,  ch,  47,  §11;  Bac,  Ab,  Verdict,  G;  Eegiua  v,  Ballivos,  1 
P.  W,  212;  6  Dane  Ab.  235;  State  v.  Arrington,  3  Murph,  571 ;  Walter  v. 
Junkins,  16  S,  &  R,  415;  Goodwin  v,  Appleton,  22  Me,  453."    Pritchard 

v.  Hennessey,  1  Gray,  294,  296.  See  also  Martin  v.  Morelock,  32  111,  487. 
■•  Winslow  v.  Draper,  8  Pick,  170;  Nininger  v,  Knox,  8  Minn,  140,  150; 
Pritchard  v,  Hennessey,  1  Gray,  294;  Crocker  v,  Hoffman,  48  Ind,  207, 
It  is  laid  down  bj'  Lord  Coke,  that  in  case  the  court  should  adjourn,  the 
jury  may  give  a  privy  verdict  to  the  judge,  and  then  they  may  eat  and 
drink;  and  then  the  next  morning  they  may  affirm  or  alter  their  privy 
verdict.  Co.  Lift.  227.  b.  If  this  means  tbat  the  jury,  after  delivering 
such  a  verdict  may  sepai-ate,  and  afterwards  change  it  in  a  material  par- 
ticular, it  is  contrary  to  modern  practice.  In  a  case  in  New  Hampshire, 
liowever,  the  jury  returned  a  verdict  for  the  amount  of  the  note  sued  on. 


392  CUSTODY  AND  SEPARATION  OF  JUIIORS.       [CH.  XVI. 

by  finding  what  that  value  was.^  So,  wlierc  nothing  remained 
but  to  compute  interest,  the  jury  might  well  be  sent  out 
again  for  that  purpose.'-  So  where,  after  having  returned  a 
verdict  in  this  manner,  the  jury  were  twice  directed  to  re- 
tire, the  first  time  to  put  their  verdict  in  proper  form,  and 
the  second  time  lo  consider  what  damages,  if  any,  should 
be  awarded,  it  was  held  that  there  was  no  objection  to  the 
practice.^  But  after  the  verdict  has  been  received,  and  the 
jury  discharged,  the  control  of  the  jury  and  of  the  court 
over  the  verdict  is  at  an  end.  The  court  cannot  alter  it,  nor 
can  the  jury  be  recalled  to  alter  or  amend  it.  The  office  of 
a  juror  is  discharged  upon  the  acceptance  of  his  verdict  by 
the  court.* 

§  837.  What  if  a  Juror  €lisseuts  from  a  Sealed  Ver- 
dict.—  If,  after  the  verdict  has  been  drawn  up,  sealed  and 
returned  into  court  in  this  way,  the  jury  in  the  meantime 
have  separated,  and,  on  its  being  read  in  court,  one  of 
the  jurors  dissents  from  it,  it  will  be  a  question  whether  it 
is  competent  for  the  court  to  direct  the  jury  again  to  retire 
and  consider  of  their  verdict.  But  the  question,  it  is 
thought,  is  easy  of  solution.  What  has  been  brought  intO' 
court  is  no  verdict  at  all.  If,  therefore,  the  rule  of  the 
forum  avoids  verdicts  which  have  been  rendered  after  the 
jury  has  separated  (as  in  Massachusetts,  for  instance),  it 
will  not  be  competent  for  the  court  again  to  send  the  jury 
out,  but  a  mistrial    should    be  entered.     If,  on  the  other 

with  interest,  and  also  for  ^97.72,  and  interest  from  the  date  of  the  writ. 
The  conrt,  it  geenis,  did  not  receive  this  verdict,  hut  directed  the  jury  to 
find  a  general  verdict,  and  thereupon  took  a  recess  till  afternoon.  Upon 
their  coming  in  after  recess,  their  verdict  being  still  imperfect,  the  court 
recommitted  the  papers  to  them  with  fuither  directions,  in  accordance- 
with  which  a  general  verdict  was  drawn  up,  against  the  objection  of  the 
defendant's  counsel.  It  was  held  that  this  case  was  governed  by  the  rule 
that  a  mere  separation  of  the  jury,  without  proof  of  abuse,  will  not,  in  a 
civil  case,  be  ground  for  setting  aside  their  verdict.  Ninis  v.  Bigelow.. 
44N.H.376. 

^  Blake  v.  Blossom,  15  Me.  3!W;  High  v.  Johnson,  28  AVis.  72,  80. 

2  Sutliff  v.  Gilbert,  8  Ohio,  405;  Nininger  v.  Knox,  8  Minn.  140. 

«  High  V.  Johnson,  28  Wis.  72,  80. 

*  Sargent  v.  State,  11  Ohio,  472. 


§   338.]    DELIVERY  AND  RECEPTION  OF  THE  VERDICT.  393 

baud,  by  the  rule  of  the  forum,  a  separation  of  the  jury 
does  not  avoid  the  verdict,  it  will  be  competent  for  the 
court  to  direct  them  again  to  retire  to  consider  of  their  ver- 
dict. This  was  done  by  Chief  Justice  Kent  ;  but  the  dis- 
senting juror,  after  again  retiring  with  his  fellows,  agreed 
to  the  sealed  verdict  which  had  been  brought  in.^  In  sub- 
sequent cases  in  the  same  State,  the  same  thing  has  been 
repeated,  and  it  has  been  held  no  ground  for  a  new  trial.^ 

§  338.  Delivery  and  Reception  of  the  Verdict.  —  The 
jury  must  assemble  again  when  their  verdict  is  to  be  deliv- 
ered in  court,  to  the  end  that  they  may  be  polled,  should 
either  party  desire  it.^  It  can  only  be  received  while  the 
court  is  in  session ;  after  the  court  has  adjourned,  the 
judge  has  no  power  to  receive  it.'*  The  judge  must  also 
be  present  in  person  to  receive  it.  He  cannot  designate 
an  attorney  to  act  for  him  in  this  respect,  although  the 
parties  are  present  and  do  not  object ;  for  this  would  be  to 
allow  him  orally  to  designate  a  person  to  hold  court  in  his 
absence,  which  the  law  does  not  permit.^  Where  the  agree- 
ment is  that  the  verdict  may  be  sealed  and  so  returned  into 
court,  the  judge  cannot  receive  an  ojDen  verdict  after  the 
counsel  have  left  the  court  room  ;  for  this  would  be  a 
violation  of  the  agreement."  Moreover,  a  verdict  ought 
only  to  be  received  on  a  juridical  day  ;  it  cannot,  in  the 
view  of  some  courts,  be  received  on  Sunday ; '  but  others 


^  Bunn  V.  Hoyt,  3  Johns.  255. 

2  Douglass  V.  Tousey,  2  Wend.  352;  Warner  v.  New  York,  etc.  R.  Co.. 
52  N.  Y.  437. 

*  Kigg  V.  Cook,  9  111.  336.  Either  party  has  a  right  to  have  the  jury 
polled,  unless  he  has  waived  that  right.  Fox  v.  Smith,  3  Cow.  23; 
Bunn  V.  Hoyt.  3  Johns.  255;  Jackson  v.  Hawks,  2  Wend.  619;  Root  v. 
Sherwood,  6  Johns.  68;  Warner  v.  New  York,  etc.  R.  Co.,  52  N.  Y.  437; 
James  v.  Doss,  55  Miss.  57;  Johnson  v.  Howe,  7  111.  342;  Rigg  v.  Cook. 
supra. 

<  Chicago  V.  Rogers.  61  111.  188. 

6  Britton  v.  Fox,  39  Ind.  3G9. 

«  Chicago  V.  Rogers,  61  111.  188. 

7  Bass  V.  Irvin,  49  Ga.  436;  Davis  v.  Fish,  1  G.  Greene,  410;  Shaw  v. 
McCombs,  2  Bay  (S.  C.)  232  (denied  in  Heller  v.  EngHsh,  1  Strobh. 
(S.  C.)  486.)  . 


ti!)4  CUSTODY  AND  SEl'AUATION  OF  JURORS.        [CH.  XVI. 

hold  timt  verdicts  returned  on  Sunday  are  good  ;  ^  and  the 
mere  fact  that  the  jury  concluded  their  deliberations  on 
Sunday,  docs  not,  it  seems,  avoid  their  verdict.^ 

§  o3i).  Consent  of  the  Unsxicces.sl'nl  Party  or  Prisoner. 
— Another  distinction  between  civil  cases  and  prosecutions 
for  felonies  relates  to  the  consent  of  the  unsuccessful  party 
that  the  jury  be  allowed  to  separate.  The  general  rule  of 
law  is,  that  consent  is  a  release  of  errors  ;  but  this  ob- 
viously applies  only  to  cases  where  the  party  is  free  to  con- 
sent, and  where  the  consent  is  not  given  under  constraint  or 
through  fear.  It  obtains  generally  in  civil  cases  ;  and  here 
the  rule  is,  that  if  the  unsuccessful  party  consent  that  the 
jury  be  permitted  to  separate  after  the  close  of  the  trial, 
and  before  returning  their  verdict,  he  cannot  afterward 
claim  a  new  trial  on  the  ground  that  they  thus  separated." 
J)ut  in  prosecutions  for  felonies  the  rule  is  different ;  for  it 
is  obvious  that  a  prisoner,  when  asked  to  give  his  consent 
to  a  separation,  cannot  exercise  a  free  choice.  To  refuse 
his  consent  might  excite  a  feeling  in  the  breasts  of  the 
jurors  adverse  to  him.^  But  this  rule  obviously  has  no  just 
ai)plication  to  a  case  where  the  separation  takes  place  in 
consequence  of  a  request  made  by  the  accused  for  a  sus- 
pension of  the  tiial,  for  his  indulgence  or  benefit;^  or  to  a 
case  where  the  consent  of  the  prisoner  to  a  separation  is 

1  Com.  V.  Miinow,  3  Brewst.  402;  Cary  v.  Silcox,  .5  Ind.  .370;  Rosser 
V.  McColly,  'J  Ind.  .")87;  McCorkle  v.  State,  14  Iiid.  39;  Iloghtaling  v. 
Osboin.  16  Johns.  119;  Baxter  v.  People,  8  111.  385;  Webber  v.  Merrill, 
34  N.  H.  202. 

2  Stoiie  V.  Bird,  16  Kan.  488;  True  v.  Plumley,  36  Me.  466. 

2  Ricrgins  V.  Brown,  12  Ga.  272;  Adkins  v.  Williams,  23  Ga.  222;  Stix 
V.  Pump,  37  Ga.  332;  Mclnto.sh  v.  Smith,  2  La.  An.  756. 

■«Ilex  V.  Kinnear.  2  Barn.  &  Aid.  462,  464;  Hardy's  Case,  24  How. 
St.  Tr.  414-418;  Wiley  v.  State,  1  Swan,  256;  Wesley  v.  State,  11 
Humph.  .502;  Peiffer  v.  Commonwealth,  15  Pa.  St.  468;  State  v.  Popu- 
lus,  12  La.  An.  710;  People  v.  Shafer,  1  Utah  Ter.  260;  Berry  v.  State. 
10  Ga.  511-524.  Much  less  can  it  be  said  that  a  failure  on  the  part  of  the 
prisoner  to  interpose  an  objection  to  the  act  of  the  court  in  allowing  the 
jury  to  separate,  or  to  the  fact  of  such  separation,  when  within  his 
knowledge,  will  conclude  him  from  urging  it  as  ground  for  new  a  trial. 
State  V.  Parrant,  16  Minn.  178,  181. 

»  Bebee  v.  People,  5  Hill,  32. 


§  339.]    CONSENT  OF  THE  UNSUCCESSFUL  TARTY.        395 

tendered  voluntarily,  and  without  any  solicitation.^  One 
court  has  taken  a  distinction  between  the  consent  of  the 
[)risoner's  counsel  and  the  consent  of  the  prisoner  himself  : 
holding  that  under  the  Texas  statute  ^  the  consent  of  the  pris- 
oner himself  might  warrant  the  court  in  permitting  the  jury 
to  separate  in  charge  of  an  officer,  yet  the  consent  of  his 
counsel  would  not  be  valid  for  this  purpose.^  In  Indiana, 
it  appears  to  be  the  i)ractice,  in  criminal,  as  well  as  in  civil 
cases,  to  allow  the  jury  to  separate,  with  the  consent  of  the 
parties,  during  the  progress  of  the  trial.*  A  similar 
practice  has  been  sanctioned  in  Missouri.  In  that  State, 
upon  the  trial  of  an  indictment  for  counterfeiting,  the 
court,  when  the  time  for  the  noon  recess  arrived,  asked  the 
counsel  "  what  shall  ])e  done  with  the  jury,"  and  the  coun- 
sel for  both  parties  agreed  that  they  might  separate  under 
a  charge  from  the  court.  Upon  several  successive  adjourn- 
ments, the  jury  separated  without  any  objection  being 
made,  until  the  attention  of  the  court  was  called  to  it,  after 
which  the  jurors  were  kept  together.  It  was  held  that  this 
was  no  ground  for  a  new  trial.  "The  defendant's  con- 
sent," said  Ryland,  J.,  "  might  well  be  presumed.  If  he 
can  plead  guilty,  I  should  think  that  he  might  well  consent 
to  the  separation  of  the  jury ;  though  in  some  cases  it 
might  be  prudent  for  the  court  not  to  permit  the  consent  to 
be  given,  in  cases  where  minors  or  slaves  are  indicted."  *  In 
California,  likewise,  the  irregularity  of  an  order  of  court  in 
a  case  of  felony  authorizing  the  sheriff  to  receive  from  the 
jury  a  sealed  verdict,  if  they  should  agree  during  the  night, 
and,  upon  its  receipt,  to  allow  the  jury  to  separate  until  the 
opening  of  the  court  on  the  following  morning,  has  been 
held  cured  by  the  fact  that  it  was  consented  to  by  the  de- 
fendant's counsel  at  the  time  it  was  made,  the  court  say- 
ing:       "Having    deliberately    consented    to    this    irregular 

1  Stephens  v.  People,  19  N.  Y.  549,  563. 

2  Pasc.  Dig.,  arc.  3070;  Tex.  Code  Ciim.Proc.  1879,  §  687. 

3  Brown  v.  State,  38  Tex.  482. 

<  Evans  v.    State,   7   Ind.   271;  McCorkle   v.    State,   14   Ind.   41,  per 
Perkins,  J. 
»  Stiite  V.  Mix,  15  Mo.  153,  157. 


396  CUSTODY  AND  SEPARATION  OF  JURORS.       \'CU.  XVI. 

form  of  procedure,  the  defendant  is  in  no  position  to  com- 
plain." ^ 

§  340.   Iiistiiiioes  wlicro  a  now  Trial  was  refused. —  (1) 

In  Capital  Cases. —  On  several  occasions,  during  the  trial 
of  a  ease  of  murder,  the  jury  took  refreshments  at  a  hotel, 
and,  two  of  them  being  colored  men,  were  accommodated 
in  a  separate  room  from  the  others ;  but  they  were  all 
under  the  charge  of  an  officer.  This  was  not  such  a  sepa- 
ration as  was  provided  against  bv  law,  and,  as  no  prejudice 
(;ould  be  i)rcsun}ed  to  have  resulted  to  tlie  prisoner  from  it, 
a  new  trial  was  refused.'^ 

A  jury  were  kei)t  up  stairs  in  a  tavern,  where  they  occu- 
pied five  lodging-rooms,  separated  by  a  passage-way,  into 
Avhich  the  only  doors  to  the  rooms  opened.  The  doors  were 
continually  open,  except  at  one  time  for  a  few  minutes  one 
of  them  was  closed.  At  each  end  of  this  passage  there 
were  doors  which  were  continually  kept  fastened  and  se- 
cured. One  or  more  of  the  deputy  sheriffs  were  constantly 
in  attendance  on  the  jury,  and  did  not  know  or  believe  that 
any  person  could  have  had  access  to  them.  It  was  held  that 
the  jury  had  been  kept  together  in  strict  compliance  with  a 
law  which  required  that,  in  such  cases,  the  jury  should  be 
kept  together.^ 

An  order  of  the  court  required  the  sheriff  to  take  the 
jury,  in  a  capital  case,  "  to  some  convenient  private  place," 
and  there  keep  them  when  not  present  in  court.  He  took 
them  to  a  public  tavern,  where  they  were  provided  with 
bed-rooms  and  a  sitting-room  exclusively  devoted  to  their 
use.  They  took  their  breakfast  b}'  themselves,  but  dinner 
and  tea  w^ere  set  in  a  public  room,  though  at  a  table  sepa- 
rated a  few  feet  from  that  of  the  other  guests.  Constables 
having  them  in  charge  were  also  present  with  them  at  their 
meals.  This  was  held  a  compliance  with  the  order  of  the 
court,  and  no  ground  for  a  new  trial. ^ 

>  People  V.  Kelly,  40  Cal.  :}57. 
2  Kee  V.  State.  28  Ark.  155,  1G6. 
'  Kennedy  v.  Coni.  2  Va.  Cases,  510. 
*  State  V.  Cucuiil,  :U  N.  .T.  L.  24!),  259. 


§    340.]    INSTANCES  WHERE  NEW  TRIAL  WAS  REFUSED.  397 

A  juror  sepanited  from  an  officer  having  him  in  charge, 
and  went  into  his  house.  The  juror,  being  examined  on 
oath  touching  this  separation,  said  that  he  saw  no  one  there 
except  a  carpenter  who  was  in  his  employ,  and  his  wife, 
and  that  he  spoke  to  neither  of  them  touching  the  merits  of 
the  case.  It  was  held  that  the  suspicion  which  the  separa- 
tion otherwise  raised,  was  rebutted.^  During  such  a  trial, 
a  juror  visited  his  home  on  three  separate  occasions,  accom- 
panied by  an  officer.  He  was  not  out  of  the  presence  of  the 
officer  at  either  time,  except  on  one  occasion,  when  he 
went  into  a  private  room,  and  changed  his  linen.  The  juror 
himself  stated  on  oath  that  he  had  no  conversation  with  any 
one  with  regard  to  the  trial.  It  was  held  that  there  was 
nothing  in  this  conduct  in  any  way  censurable  or  irregular,  a 

In  a  capital  case,  after  the  jury  had  been  impanelled,  and 
before  the  termination  of  the  trial,  one  of  the  jurors  was 
permitted  by  the  officer  in  charge  of  the  jury  to  go  into  his 
house  for  the  purpose  of  procuring  a  change  of  his  linen.  For 
this  purpose  he  went  into  a  room  up  stairs,  and  was  gone 
from  three  to  five  minutes,  the  officer  in  the  meantime  re- 
mainino;  below.  The  officer  believed  that  he  could  not  with- 
out  the  officer's  knowledge,  have  been  conversed  with 
improperly  by  anybody.  The  court  said  :  "  From  the  facts 
which  appear  as  to  the  separation  of  this  juror  from  his  fel- 
Jows,  there  seems  to  be  no  proper  ground  of  suspicion  that 
anything  improper  occurred  during  his  short  absence  from 
them,  and  from  the  officer.  It  was  reasonable  to  allow  him 
to  change  his  linen,  and  to  allow  him  time,  and  that  degree 
of  privacy  necessary  and  proper  for  that  purpose.  He  was 
absent  no  longer  than  was  reasonably  required.  There  was 
no  suggestion  that  he  saw  there  any  one  not  a  member  of 
his  own  family.  He  must  be  presumed  to  have  gone  for  the 
purpose  for  which  he  asked  leave  ;  and  he  seems  to  have 
returned  as  soon  as  it  was  accomplished.  We  can  see  no 
ground  to  suspect  that  the  prisoner  could  have  been  injured 


'  State  V.  Cucuel,  31  N.  J.  L.  'lid,  260. 
2  Ibid. 


oUS  CUSTODY  AND  SEPARATION  OF  JURORS.        [CH.  XVI. 

by  the  soj)ai;itioii,  ami  if  not,  it  funii.shos  no  ground  for  a 
new  trial."  ' 

On  the  trial  of  an  indictment  for  murder,  the  jury  not 
agreeing  on  their  verdict,  the  court  at  night  adjourned  till 
the  next  morning.  The  jury  were  committed  to  two  sher- 
iffs to  be  inclosed  in  a  room  to  be  prepared  for  them.  In 
conducting  them  from  the  court-house  to  their  room,  one 
juror  se[)arated  from  his  fellows,  and  from  the  officers  hav- 
ing them  in  charge,  a  distance  of  about  twenty-five  yards,  in 
order  to  give  directions  to  a  negro  servant  about  his  horse. 
He  was  immediately  l)rought  back  to  the  others  by  one 
of  the  sheriffs,  was  absent  not  more  than  a  minute,  and 
spoke  to  no  person  but  the  negro  servant.  The  jury  returned 
into  court  the  next  morning  with  a  verdict  of  murder  in  the 
first  decree.  It  was  held  that  there  was  no  ground  to  set 
aside  the  verdict.^ 

A  jury  impanelled  to  try  a  prisoner  on  an  indictment  for 
murder,  were  allowed  to  separate  during  the  progress  of  the 
trial.  It  did  not  appear  that  any  of  the  jurors  left  the 
court-room,  though  some  of  them  held  conversation  with 
spectators  ;  but  it  was  shown  that  this  had  no  reference  to 
the  cause  on  trial.  A  statute  existed  permitting  the  sepa- 
ration of  the  jurors,  by  consent  of  the  court,  in  all  criminal 
trials,  at  any  time  l^efore  the  final  submission  of  the  cause  ; 
but  it  required  that,  in  such  a  case,  they  should  be  ad- 
monished by  the  court  that  it  was  their  duty  not  to  con- 
verse with,  or  permit  themselves  to  be  addressed  by  any 
other  person  on  the  subject  of  the  trial .^  The  record  did 
not  show  whether  this  admonition  had  been  given  or  not. 
But  it  was  held  that  there  was  no  ground  for  a  new  trial. 
The  court  was  bound  to  presume  that  the  court  below  did 
its  duty  in  this  regard.'* 

On  the  morning  on  which  a  jury  returned  their  verdict, 
about   half   of    them   were    seen   in   the    woods    near   the 

1  State  V.  O'Brien,  7  E.  I.  337,  341. 

*  McCarter  v.  Com.  11  Leigh,  633. 
'  Gen.  Stats.  Neb.  1873,  §  48-1. 

*  Caw  V.  People,  3  Neb.  357;  Walrath  v.  State,  8  Neb.  80. 


§   340.]    INSTANCES  WHERE  NEW  TRIAL  WAS  REFUSED.  31)9 

town  ill   which    the    court  Avas  held,  and    the  others  were 
not  in  view.     Where  the  affiants  took  their  position,  how- 
far  from  the  phice  where  the  jurors  were,  or  what  inter- 
vening ohjects  there  might  have  been,  the  affidavits  did  not 
state.     Nor  did  they  state  that  the  officer  who  had  charge 
of  the  jury  was  not  with  or  near  the  jurors  who  were  thus 
seen  on  the  common  ;  nor  that  other  persons  were  about  the 
jurors,  who  miglit  have  approached  them  or  s[)oken  in  their 
hearing  in  reference  to  the  trial.     The  jury  had  been  im- 
panelled on  the  4th  of  Januar}^  and  the  trial  had  progressed 
from  diiy  to  day  till  the  8th,  when  the  cause  was  finally  sub- 
mitted to   them.      This  occurrence  was,  therefore,   on  the 
following  morning.     It  was  held  that  no  ground  for  a  new 
trial  had  been  shown,  the  court  saying:    "It  has  not  been 
the  practice  in  this  State  to  lock  up  juries  in  rooms,  and 
keep  them  in  close  confinement  from  the  time  the  cause  is 
submitted  to  them  until  they  render  their  verdict.     Suitable 
rooms  for  such  continuous  and  exclusive  confinement  could 
rarely   be  furnished   in    the   places    where  our  courts  are 
holden.     It  is  a  very  common  practice  for  juries  during  the 
day  time,  to  retire  to  the  woods  which  are  adjacent  to  most 
of  our  court-houses,  for  the  purpose  of  making  up  their 
verdicts,  whilst  the  officer  in  charge  stations  himself  at  a  re- 
spectful distance  from  them,  so  as  not  to  intrude  upon  their 
deliberations  himself,  but  to  guard  them  from  the  approach 
of  others.     And  where  the  jury  are  confined  to  a  room  dur- 
ing the  night,  which  is  usually  the  case,  they  are  not  unfre- 
quently  permitted  by  the  officer  to  retire  to  the  woods  in 
the  morning.     It  is  more  than  probable  that  the  jury  in  this 
case,  after  having  been  left  in  the  room  during  the  night, 
were    allowed  by   the    officer   to   retire   to    the  woods    on 
the  morning  of  the  9th  of  January  for  a  sufficient  reason  ; 
and  perhaps,  if  the  affiants  had  ascertained  and  stated  all 
the  facts,  in  their  affidavits,  the  cause  of  some  of  the  jurors 
being:  out  of  sight  would  have  been  accounted  for.     If  ver- 
diets  were  set  aside  upon  such  affidavits  of  separation  as  the 
one  now  before  us,  a  verdict  would  rarely  be  permitted  to 


400  CUSTODY  AND  SEPARATION  OF  JURORS.        [CH.   XVI. 

.stand,  where   the  accused  is   found   guilty  of  a  grave  of- 
fence." 1 

A  juror  left  his  fellows  and  the  officer  in  charge  of  them 
standing  in  the  street,  and  went  into  a  saloon  to  get  a  ciirar. 
He  w'as  all  the  time  in  full  view  of  the  officer  and  his 
fellow  jurors.  In  connection  with  the  fact  that  the 
court  could  not  say  that  the  prisoner  had  not  had 
a  fair  and  impartial  trial,  this  was  held  no  ground 
for  a  new  trial  .^  During  such  a  trial  a  female  witness 
fainted  during  her  examination,  and  some  of  the  jurors 
lifted  her  up,  carried  her  into  an  adjoining  chamber  of  the 
judge,  and  laid  her  on  a  sofa.  They  were  absent  about  a 
minute,  and  the  deputy  sheriff  who  attended  upon  the  court 
accompanied  them.  During  the  whole  time  they  were  in 
the  presence  of  the  Avitness,  she  was  insensible.  This  was 
held  no  ground  for  a  new  trial." 

(2.)  In  Cases  of  Felony  not  Capital. —  On  the  trial  of 
an  indictment  for  assault  with  intent  to  murder,  it  appeared 
that  a  juror  went  out  of  the  jury  room  into  a  barber's 
shop  to  get  shaved,  without  the  knowledge  of  the  bailiif, 
while  the  jury  were  considering  of  their  verdict.  It  was 
shown,  however,  that  he  conversed  with  no  one,  during  his 
absence,  on  the  subject  of  the  trial,  and  that  he  returned 
to  the  jury-room  as  soon  as  the  purpose  for  which  he  had 
absented  himself  was  accomplished.  This  was  held  suffi- 
cient to  rebut  the  presumption  of  any  injury  to  the  pris- 
oner.* 

On  the  trial  of  an  indictment  for  perjury,  after  a  part  of 
the  evidence  had  been  delivered,  the  judge  retired  for  a 
few  moments.  Two  of  the  jurors  also  retired  without 
leave,  and  without  an  officer,  and  returned  again.  A  ver- 
dict of  guilty  having  been  returned,  the  prisoner's  counsel 
moved  to  set  it  aside,  on  the  ground  that  there  had  been  a 

1  Coker  v.  State,  20  Ark.  53,  61. 

2  Jenkins  v.  State,  41  Tex.  128. 

3  People  V.  Lee,  17  Cal.  76. 

*  Westmoreland  v.  State,  45  Ga.  225.     See  also  Berry  v.  State,  10  Ga. 
511. 


f   341.]   INSTANCES  WHERE  NEW  TRIAL  WAS  GRANTED.  401 

•separation  of  the  jury.  It  was  ruled  that  if  it  should  ap- 
pear oil  the  affidavits  of  the  jurors  that  they  did  not  speak 
with  any  one  during  the  separation,  the  verdict  should  not 
be  set  aside  ;  and  the  point  was  not  further  pressed.^ 

Under  the  late  Texas  Code  of  Criminal  Procedure,^  which 
provided  that  "  after  a  jury  has  been  sworn  and  impanelled 
to  try  any  case  of  felony,  they  shall  not  be  permitted  to 
separate  until  they  have  returned  a  verdict,  unless  by  per- 
mission of  the  court,  with  the  consent  of  the  district  attor- 
ney and  the  defendant,  and  in  charge  of  an  officer,"^  the 
following  facts  appeared  in  the  trial  of  a  slave  for  murder  : 
The  jury  were  present  in  the  court  room  while  the  people 
were  holding  a  political  meeting :  but  it  was  not  distinctly 
shown  whether  they  mingled  with  the  people,  conversed 
and  took  part  in  the  meeting,  or  whether  they  remained 
apart  in  a  body  as  listeners  and  spectators  ;  but  there  was  a 
circumstance  from  which  the  court  inferred  that  they  re- 
mained together.  Two  of  the  jurors,  at  different  times, 
were  also  shown  to  have  retired  from  the  jury  room  to  the 
court  yard  in  obedience  to  calls  of  nature,  accompanied  by 
an  officer,  but  conversed  with  no  one.  A  ncvv  trial  was 
refused.* 

§  341.  Instances  where  a  NeAV  Trial  was  granted. — (1- j 
In  Capital  Cases. —  A  juror  who  had  been  sworn  in  a  cap- 
ital case,  after  being  charged  with  the  case,  was  allowed  to 
separate  from  his  fellows  and  go  to  a  store  a  hundred  yards 
away  for  his  overcoat,  passing  through  a  crowd  of  persons 
2'oing  and  returnino;.  He  made  an  affidavit  that  Jie  did  not 
speak  to  any  one,  and  that  no  one  spoke  to  him  about  the 
case.  A  new  trial  was  granted,  because  he  did  not  state 
that  he  had  not  heard  any  one  speak  at  all  about  the  case. 
Notwithstanding  the  affidavit,  persons  in  the  crowd  might 
have  been  speaking  to  each  other  about  the  case.^     During 

1  State  V.  Carstaphen,  2  Hayw.  238. 

2  Art.  605,  Pasc.  Dig.  Tex.  Stats.,  §  3078. 

3  To  the  same  effect  is  section  687  in  tlie  code  of  1879. 
*  Jack  V.  State,  26  Tex.  1. 

5  Daniel  v.  State,  56  Ga.  653. 

(26) 


402  CUSTODY  AND  SEPARATION  OF  JURORS.       [CII.  XVI. 

such  a   trial   which   lasted    for    several  days,  some    of  the 
jurors    fre({uently    al»sented    themselves  from   their  fellow 

urors,  at  night,  for  tifteeu  to  twenty  minutes  at  a  time. 
This  was  held  sufficient  to  vitiate  the  verdict,  Avithout  any 

mproper  tampering  with  the  jury  being  in  fact  showu.^ 
On  such  a  trial  one  of  the  jurors  separated  himself  from 
his  fellows  after  the  jury  had  retired  to  dcliherate  on  their 
verdict.  He  was  gone  hut  a  short  time,  and  it  was  not 
shown  that  he  had  communication  with  any  one  while  ab- 
sent. For  this  reason  a  new  trial  was  irrjvnted.  It  was 
held  that,  in  a  case  of  felony,  the  fact  of  separation  is  suffi- 
cient without  regard  to  length  of  time,  and  that,  where 
there  has  been  a  separation,  it  is  unnecessary  to  show  a 
tampering  Avith  the  juror,  or  even  a  conversation  with  him 
upon  the  subject  of  the  trial  .^ 

In  such  a  case  it  appeared  that  some  of  the  jurors  had 
been  permitted  to  dine  at  the  table  of  a  public  hotel. 
"This,"  said  the  Supreme  Court  of  Illinois,  "cannot  be 
sanctioned  by  this  court,  and  should  not  be  tolerated  by 
any  court."  The  judgment  was  reversed,  three  judges 
dissenting ;  but  it  also  appeared  in  this  case  that  some  of 
the  jurors  bad  been  absent  from  the  others  at  their  houses 
four  or  five  times,  and  separated  from  the  bailiff,  he  being 
left  in  another  room.^ 

(2.)  In  Cases  of  Felony  not  Capital. —  A  jury  was 
sworn  to  try  a  prisoner  upon  several  indictments  for  grand 
larceny.  After  giving  a  verdict  of  not  guilty  on  the  first 
indictment,  they,  supposing  that  their  duties  were  at  an 
end,  separated  and  went  to  a  tavern,  and  then,  returned  into 
court,  when,  against  the  objection  of  his  counsel,  the  pris- 
oner was  tried  on  the  other  indictments  and  found  guilty. 
It  was  held  that  this  was  irregular  ;  and  the  prisoner,  on 
the  recommendation  of  the  court,  was  discharged.'* 


1  McLain  v.  State,  10  Yerg.  241. 
'  Maher  v.  State,  3  Minn.  444. 
3  Jumpertz  v.  People,  21  111.  37.5,  411. 
*  People  v.  Meany,  4  Johns.  294. 


§   341.]   INSTANCES  WHERE  NEW  TRIAL  WAS  GRANTED.  403 

Pending  the  trial  of  an  indictment  for  a  felony  not  capi- 
tal, and  before  the  testimony  was  closed,  five  of  the  jury 
received  permission  to  retire  from  the  court  room  accom- 
panied by  the  sheriff.  Another  juror  thereupon  left  the 
jury-box  without  the  knowledge  of  the  court,  passed  out  of 
the  court  house  through  a  crowd  of  persons,  and  remained 
absent  a  few  minutes,  after  which  he  returned  into  court. 
During  this  absence,  he  was  not  in  charge  of  the  sheriff, 
nor  seen  by  him,  but  he  made  oath  that  he  had  no  commu- 
nication with  any  person  whatever.  The  trial  thereafter 
proceeded,  and  the  prisoner  was  convicted.  It  was  held 
that  this  separation  of  the  juror  from  his  fellows  was  suffi- 
cient ground  for  setting  aside  the  verdict.^ 

On  the  trial  of  an  indictment  for  manslaughter,  during  a 
recess  of  the  court  from  Saturday  till  Monday,  the  jury 
were  left  in  their  room  in  charge  of  a  bailiff.  This  officer, 
regardless  of  his  duty,  not  only  permitted  them  to  sepa- 
rate, but  permitted  several  persons  to  enter  their  room  and 
have  free  communication  with  them.  The  defendant  hav- 
ing been  found  guilty,  a  new  trial  was  for  this  reason 
granted,  the  court  saying:  "The  misconduct  of  the  jury 
was  very  gross  ;  and  upon  the  present  motion  the  court  will 
not  stop  to  inquire  into  the  motives  of  the  jury,  or  the  inten- 
tions of  those  who  commingled  with  them,  or  whether  a 
word  passed  between  the  jury  and  others  in  reference  to 
the  cause  hi  hand.  The  trial  by  jury  must  be  preserved 
stainless  and  pure,  and  the  precedent  which  a  judgment  on 
this  verdict  would  furnish,  would  be  most  dangerous."  ^ 

1  Overbee  v.  Com.,  1  Rob.  (Va.)  756. 
3  State  V.  Sherbourne,  Dudley  (Ga.)  28. 


404  IMPROPER  COMMUNICATIONS.  [CH.  XVII. 


CHAPTER   XVII. 


or   IMPROPER  COMMUNICATIONS. 


SECTION. 

348.  The  Mere  Fact  of  a  Comnuinicatioii  not  ground   for  a  New 

Trial. 

(1.)  Communication  must  have  been  prejudicial. 

(2.)  Unexplained  Conununications. 

(3.)  Tampering  by  Successful  Party. 

349.  Communications  between  Jurors  and  Tliird  Persons. 

(1.)  General  Kule. 

(2.)  In  Cases  of  Felony. 

(3.)  In  Civil  Cases. 

(4.)  In  Cases  of  Misdemeanor. 

350.  Reading  Newspapers  generally. 

351.  Eeading  Newspaper  Reports  of  the  Trial. 

352.  Communications  between  .Jurors  and  Witnesses. 

353.  Hearing  Testimony  after  Retiring. 

354.  Visiting  the  Locus  in  Quo. 

355.  Judge  may  not  privately  communicate  with  the  Jury. 

(1.)  Stringent  Nature  of  the  Rule. 
(2.)  Reasons  on  which  it  rests. 
(3.)  A  contrary  Rule  in  New  Hampshire. 
(4.)  Exception  in  South  Carolina. 

356.  Otherwise  when  the  Communication  is  open  and  public. 

357.  Instructing  the  Jurj^  in  the  Absence  of  Counsel. 

358.  Rule  applicable  to  Sheriff's  Jury. 

359.  What  if  both  Parties  consent. 

300.     The  Right  to  a  New  Trial  on  this  Ground. 

3G1.     Communications  between  the  Jury  and  the  Clerk. 

362.  Between  the  Jurors  and  the  Officer  having  them  in  Charge. 

(1.)  General  liule. 

(2.)  Illustrations  —  Verdict  left  to  stand. 

(3.)  Continued  —  Verdict  set  aside. 

(4.)  Evidence  of  the  Officer's  Misconduct. 

(5.)  Conflict  of  Decisions  in  New  York. 

363.  Communications  between  the  Jurors  Themselves. 


CH.  XVII.]  IMPROPER  COMMUNICATIONS.  405 

364.  Tampering  with  Juries. 

(1.)  Embracery  at  Common  Law. 
(2.)  Difficulties  of  maintaining  Civil  Actions  for. 
(3.)  How  punished  under  Statutes. 
(4.)  Subjects  Jurors  to  Punishmeat. 
(5.)  Always  Ground  for  a  Xew  Trial. 
(6.)  Affidavits  of  Jurors  admissible  to  show. 
(7.)  Communications  by  Friends  of  the  Prevailing  Party. 
(8.)  By  his  Counsel. 

(9.)  By  tlie  Prosecuting  Witness  in  a  Criminal  Case. 
(10.)  By  Officious  Third  Persons. 

(11.)  Presumption    from    such    Undisclosed  Communica- 
tions. 
(12.)  Kule  where  the  Communication  is  disclosed. 
(13.)  Party  moving  for  a  New  Trial  on  this  Ground  must 
himself  be  Innocent. 

365.  Communications  made  by  Jurors. 

(1.)  General  Rule.  •_    . 

(2.)  Communications  by  .Jurors  to  Parties. 

(3.)  To  Third  Persons, 

(4.)  Remarks  of  Jurors  indicating  Prejudice. 

§  348.  The  mere  Fact  of  a  Communication  not  Ground 
lor  a  New  Trial. —  Whether  the  fact  that  members  of  the 
jury  have,  pending  the  trial,  or  during  their  deliberations, 
held  communications  with  persons  not  of  the  jury,  will  be 
ground  for  a  new  trial,  is  governed  by  the  rule  which  has 
been  stated  in  the  preceding  chapter  with  regard  to  separa- 
tions of  the  jury.  There  is  a  very  close  connection 
between  the  two  subjects.  A  separation  of  a  jury  is  only 
prejudicial  where  it  leads  to  improper  communications  with 
its  members.  Improper  communications  are  harmful,  whether 
made  to  the  whole  jury  when  together,  to  a  single  juror 
when  with  his  fellows,  or  to  a  single  juror  when  separated 
from  his  fellows.  Whether  a  communication,  then,  will 
afford  ground  for  a  new  trial,  must  depend  upon  its  harmful 
tendency ;  and  this  is  to  be  determined  according  to  the  cir- 
cumstances of  each  case,  having  reference  to  the  nature  of 
the  communication,  the  person  making  it,  the  time  when, 
the  place  where  it  was  made,  and  other  surroundings.  The 
leading  rules  on  this  subject  are  : 

(1.)  Communication  must  have  been  prejudicial. —  The 
mere  fact  that  such  communications  have  been  hold  will  not 


406  IMPROPER  COMMUNICATIONS.  [CII.  XVII. 

vitiate  the  verdict,  unless  they  were  of  such  Ji  nature  as 
manifestly  to  corrupt  or  prejudice  the  mind  of  the  particu- 
lar juror,  or  otherwise  to  interfere  with  the  deliberations  of 
the  jury.^ 

(2.)  Unexplained  Communication. —  But,  as  an  unex- 
plained separation  of  jurors  from  their  fellows  leads  to  an 
inference  of  tampering,'^  so  the  fact  that  jurors  have  held 
communications  with  the  successful  party  to  the  suit,  with 
his  friends,  counsel  or  agents,  the  nature  of  which  is  not 
disclosed,  will  lead  to  such  au  inference  of  tampering  as 
will  require  the  verdict  to  be  set  aside  ;'^  for  if  the  commu- 
nication were  innocent,  it  would  be  susceptible  of  explana- 
tion. 

(3.)  Tampering  by  Successful  Party. —  But  where  the 
successful  party  to  the  suit  is  shown  to  have  attempted,  by 
improper  means,  to  influence  the  verdict  in  his  favor, 
whether  by  corrupting  or  intimidating  particular  jurors, 
by  arousing  prejudice  in  their  minds  against  the  opposite 
party  or  his  cause,  or  hy  undue  hospitalities  or  civilities, 
the  verdict  will  be  set  aside,  on  grounds  of  [)ublic  policy,  as 
a  punishment  to  the  offender  and  as  an  exam})le  to  others, 
without  reference  to  the  merits  of  the  controversy,  and 
without  considering  whether  the  attempt  was  successful  or 
not.'' 

1  Barlow  v.  State.  2  Blackf.  114;  State  v.  C'ucue],  31  X.  J.  L.  249,  262; 
March  v.  State,  44  Texas,  64,  82. 

2  Ante.,  §  328. 

3Com.  V.  Kobj',  12  Pick.  496,  520;  Hamilton  v.  Pease,  38  Conn. 
115;  Martin  v.  Morelock,  32  111.  485.  See  Pope  v.  State,  36  Miss. 
121;  Ned  v.  State,  33  Miss.  364;  Organ  v.  State,  26  Miss.  83;  Hare 
V.  State,  4  How.  (Miss.)  187;  McCaun  v.  State,  9  Smed.  &  M.  465,  469. 

4  Cottle  V.  Cottle,  6  Me.  140;  Walker  v.  Walker,  11  Ga.  206;  Vaughn 
V.  Dotson,  2  Swan,  348;  Sexton  v.  Lelievrre,  4  Coldw.  11;  Tucker  v. 
South  Kingstown,  5  R.  I.  5.58,  .561 ;  Hicks  v.  Drury,5  Pick.  296;  Mclntire 
V.  Hussey,  57  Me.  493;  Cilley  v.  Bartlett,  19  N.  H.  312,324;  State  v. 
Hascall,  6  N.  H.  352,  360;  Mcllvaiiie  v.  Wilkins.  12  X.  H.  474,  476;  Per- 
kins V.  Knight,*2  X.  H.  474;  Martin  v.  :Mor('lock,  32  111.  485;  Knight  v. 
Freeport,  13  Mass.  218;  Heff-on  v.  GalUipe,  55  Me.  563,  569;  Coster  v. 
Merest,  3  Brod.  &  Bing.  272;  Sheaff  v.  Gray,  2  Yeates,  273;  Sloan  v. 
Harrison,  1  X.  .J.  L.  (Coxc)  123;  Ritchie  v.  Holbrooke,  7  Sergt.  &  R. 
458;  Hawkins  v.  Xew  Orleans  Printing  Co.,  29  La.  An.  134;  Bradbury 


^   349.]  BETWEEN  JURORS  AND  THIRD  PERSONS.  407 

§  349.  Coiumiinications  between  Jurors  and  Third  Per- 
sons.—  (1.)  General  Rule. —  The  courts  generally  agree 
that  where  the  interference  of  strangers  with  the  jury  has 
not  been  promoted  by  the  prevailing  party,  has  not  been 
attended  with  corruption,  and  it  does  not  reasonably  appear 
that  substantial  prejudice  has  resulted  to  the  party  com- 
plaining, the  verdict  will  not  be  disturbed  for  this  reason, 
whether  the  cause  be  civil  or  criminal,  capital  or  other- 
wise.^ For  stronger  reasons,  where  the  nature  of  the  com- 
munication is  explained  by  affidavits,  which  make  it  clear 
that  it  was  of  such  a  nature  that  no  injury  resulted  from  it, 
it  will  be  no  ground  for  a  new  trial. ^  Even  where  bystand- 
ers, not  witnesses,  obtruded  themselves  into  the  jury-room, 
during  the  deliberations  of  the  jury,  a  new  trial  was 
refused,  although  one  of  the  jurors  changed  his  opinion,  as 
to  the  amount  of  damages,  after  this  intrusion  took  place,  it 
not  appearing  that  what  was  said  by  the  intruders,  was 
listened  to  by  the  jurors  as  evidence  ;  the  court  saying : 
*'  We  are  not  aware  of  any  instance  in  which  the  idle  and  im- 
pertinent observations  of  persons  not  witnesses  in  the  cause, 
and  wholly  unconnected'  with  the  parties,  and  who  have 
had  access  to  the  jurors  without  any  fault  in  them,  were 
held  to  vitiate  the  verdict."  ^     For  a  juror  to  listen  to  the 

V.  Cony,  62  Me.  223;  Smith  v.  Willingham,  44  Ga.  200;  McCarver  v. 
Pippin,  12  Heisk.  657;  Hamilton  v.  Pease,  38  Conn.  115;  Eeynolds  v. 
Champlain  Trans.  Co.,  9  How.  Pr.  7;  Mench  v.  Bolbach,  4  Fhila.  68; 
Simpson  v.  Kent,  9  Pliila.  30.  Bnt  see  Nesmith  v.  Clinton  Fire  Ins. 
Co.,  8  Abb.  Pr.  141.     Post,  §  364. 

1  People  V.  Boggs,  20  Cal.  432;  Epps  v.  State,  19  Ga.  102,  122;  Cohron 
V.  State,  20  Ga.  752,  759;  Barbour  v.  Archer,  3  Bibb.  8;  Hager  v.  Hager, 
38  Barb.  92,  100;  Martin  v.  People,  54  111.  225;  MeKenzie  v.  State,  26 
Ark.  334;  Barlow  v.  State,  2  Blackf.  114;  State  v.  Cuciiel,  31  N.  J.  L. 
249,  262;  March  v.  State,  44  Tex.  64,  82;  State  v.  Fruge,  28  La.  An.  657; 
Ellis  V.  Ponton,  32  Tex.  434,  439;  Armleder  v.  Lieberman,  33  Ohio  St.  77. 

2  Westmoreland  v.  State,  45  Ga.  225,  281 ;  Burtine  v.  State,  18  Ga.  534, 
538;  Caw  v.  People,  3  Neb.  357;  Ned  v.  State,  33  Miss.  305;  Luster  v. 
iState,  11  Humph.  169;  State  v.  Degonia,  69  Mo.  485,  490;  Contra,  Com. 
V.  Wormley,  8  Gratt.  712.  In  Connecticut  the  inquiry  is  whether  the 
successful  party  was  benefited,  or  the  unsuccessful  party  injured,  by  the 
-communication.  Hamilton  v.  Pease,  38  Conn.  115;  Bennett  v.  Howard, 
-3  Day,  219;  Pettibone  v.  Phelps,  13  Conn.  445. 

3  Barbour  v.  Archer,  3  Bibb,  8.     See  also  Luster  v.  State,  11  Humph. 


408  IMPROPER  COMMUNICATIONS.  [CH.  XVII. 

remark  of  a  wonian  who  kept  an  oyster  saloon,  to  the  effect 
that  she  had  heard  the  testimony  of  one  witness,  did  not 
think  much  of  the  accused,  and  if  it  could  be  left  to  a  jury 
of  women  they  would  hang  him  ;  ^  or  to  listen  to  a  few 
passing  remarks  between  members  of  the  jury  and 
strangers ;  ^  or  that  some  of  the  members  of  the  jury  spoke 
to  persons  outside  of  their  room  during  a  temporary  ab- 
sence of  the  officer  having  them  in  charge  ;  or  that,  after 
they  had  agreed  on  their  verdict,  and  had  been  brought 
into  court,  they  were  left  some  time  by  the  officer  in  the 
court  room  while  he  went  outside  to  watch  for  the  judge  ;  ^ 
o  that,  while  the  officer  having  the  jury  in  charge  had  gone 
out  of  their  room  for  wood  and  water,  a  third  person  came 
into  their  room,  and  conversed  with  no  one,  but  listened 
w^hile  one  of  the  jury  played  on  a  fiddle  ;*  —  have  been  held 
not  sufficient  grounds  for  a  new  trial.  But  in  a  civil  case 
where  a  juror  "  conversed  freely  about  the  case  wath  a  per- 
son not  of  the  jury,"  a  new  trial  was  granted.^ 

(2. )  In  Cases  of  Felony. —  The  subject  is  governed  by  the 


169;  State  v.  Degouia,  69  Mo.  485,  490.  Much  less  will  it  be  a  ground 
for  a  new  trial  that  a  bystander  who  had  heard  the  evidence  met  one  of 
the  jurors,  after  the  jury  had  agreed  upon  and  sealed  up  their  verdict,, 
and  conferred  with  him,  and  expressed  his  opinion  as  to  the  merits  of 
the  case.  Willing  v.  Swasey,  1  Browne  (Pa.),  123.  The  Criminal  Code 
of  Texas  contains  the  following  provision:  "New  trials  in  cases  of 
felony  shall  be  granted  for  the  following  causes,  and  for  no  other;  *  *  * 
7.  Wliere  the  jury,  after  having  retired  to  deliberate  upon  a  case,  have  re- 
ceived other  testimony;  or  where  a  juror  has  conversed  with  any  person 
in  regard  to  the  case."  1  Pasc.  Dig.,  Tex.  Stats.  Art.  3137;  Code  Cr. 
Proc.  1879,  Art.  777,  subsec.  7.  The  Supreme  Court  of  Texas  holds  that 
the  conversation  alluded  to  in  this  statute  must  be  a  conversation  calcu- 
lated to  impress  the  case  under  consideration  upon  the  mind  of  the  juror 
in  a  different  aspect  from  that  presented  by  the  evidence  in  the  court- 
room, or  othei-wise  of  such  a  nature  as  is  calculated  to  result  in  harm 
to  the  prisoner  on  trial.     March  v.  State,  44  Tex.  64,  82. 

1  State  V.  Cucuel,  31  N.  J.  L.  249,  262. 

2  People  V.  Kelly,  46  Cal.  357. 

3  People  V.  Boggs,  20  Cal.  435. 

^'  *  Luster  v.  State,  11  Humph.  169.    See  also  State  v.  Degonia,  69  Mo^ 
85,  490. 
«  Bennett  v.  Howard,  3  Day,  219. 


§   349.]  BETWEEN  JURORS  AND  THIRD  PERSONS.  409" 

principles  more  fully  stated  elsewhere ;  ^  from  which  it 
would  appear  that  the  fact  of  a  communication,  without 
more,  creates,  in  the  view  of  some  courts,  an  unfavorable 
presumption  which,  unexplained,  will  overturn  the  verdict  ;^ 
whereas,  in  the  view  of  other  courts,  the  mere  fact  of  such 
a  communication  will  not  be  ground  for  setting  aside  the 
verdict,  unless  it  be  made  to  appear  probable  that  prejudice 
resulted  from  it,^  whilst  in  no  court  would  a  verdict  be  dis- 
turbed for  this  cause,  where  it  should  appear  that  the  com- 
munication was  innocent  and  without  prejudice  to  the 
accused.* 

(3.)  In  Civil  Cases. —  In  civil  cases  the  courts  gener- 
ally hold  that,  in  order  to  set  aside  a  verdict  because  im- 
proper communications  have  been  had  between  members  of 
the  jury  and  third  persons,  the  affidavits  must  do  something 
more  than  raise  suspicions  that  improper  influences  might 
have  been  brought  to  bear  on  the  jury.  A  verdict  which 
twelve  men  have  rendered  under  the  solemnity  of  their 
oaths,  is  certainly  entitled  to  some  consideration  ;  and  it 
would  not  only  be  unjust  to  the  party  who  has  obtained  it 
to  set  it  aside  for  some  irregularity  which  has  happened 
without  his  fault,  unless  prejudice  clearly  appear ;  ^  but 
it  would  be  entirely  opposed  to  the  policy  of  the  law, 
which  favors  the  ending  of  litigation  and  the  quieting 
of  controversies.  Illustrations  of  this  might  be  multiplied  ; 
but  one  will  be  selected,  which  is  quite  apt:  It  was  shown 
that,  while  a  jury  were  deliberating,  the  constable  having 
them  in  charge  talked  with  them  other  than  to  ask  them  if 
they  had  agreed  on  their  verdict.  This  was  no  ground  for  a 
new  trial,  for  it  was  also  shown  that  his  conversation  with 
them  did  not  relate  to  matters  connected  with  the  suit. 
After  hearing  the  evidence,  and  before  retiring  to  consider 
of  their  verdict,  the  jury  separated  temporarily.     This  was 

1  See  Ch.  XVI..  'passim. 

2  Ante,  §  328. 
»  Ante,  §  318. 

*  Martin  V.  People,  .54  111.  225;  McKenzie  v.  State,  26  Ark.  334,  343. 

*  Armleder  v.  Lieberman,  33  Ohio  St.  77. 


410  IMPROPER  COMMUNICATIONS.  [CH.  XVII. 

no  ground  for  a  new  trial ;  for  it  was  matter  of  evcry-day 
practice  for  jurors  so  to  separate.  The  subject  of  the  suit  was 
talked  of  in  the  presence  of  some  of  the  jurors  by  bystanders. 
This  was  no  ground  for  wresting  the  verdict  from  the  success- 
ful party  ;  for  it  did  not  appear  that  the  conversation  related 
to  the  merits  of  the  controversy.  The  affidavits  did  not  dis- 
close what  was  said.  It  might  have  been  merely  that  it  was 
11  lengthy  trial  ;  that  it  was  an  expensive  litigation  ;  that  it 
was  about  a  certain  tract  of  land ;  that  the  land  was  valu- 
able, or  the  reverse.  One  of  the  jurors  thowjld  that  a  map 
of  the  land  in  controversy  might  have  been  exhibited.  Sup- 
pose it  was.  To  whom  was  it  exhibited,  by  whom,  in  what 
way,  and  for  what  purpose?  AVas  it  accompanied  by  any 
explanations,  or  was  it  merely  held  up  and  talked  about,  iu- 
audibly  to  the  jurors,  by  the  bystanders  themselves?  What 
map  was  it?  One  that  had  been  given  in  evidence  on  the 
trial,  in  the  hands  of  a  surveyor  or  other  witness?  "All 
these  aie  questions,"  said  Hogeboom,  J.,  "not  answered 
by  the  evidence.  To  set  aside  a  verdict,  without  any  further 
light  upon  these  subjects  than  is  presented  by  the  affidavits, 
would  seem  to  be  trifling  with  the  solemnity  of  a  verdict 
rendered  upon  oath.  If  remarks  were  made  tending  to 
prejudice  the  cause  or  the  parties,  the  nature  of  them  could 
l)e  stated  ;  and  the  very  omission  to  state  what  they  were 
])y  the  persons,  whether  jurors  or  otherwise,  who  heard 
them,  furnishes  pregnant  proof  that  they  were  wholly  im- 
material and  unprejudicial.  While  we  should  carefully 
guard  the  purity  of  verdicts  in  our  courts  of  justice,  and  re- 
fuse to  sustain  them  when  tainted  with  any  reasonable  sus- 
picion of  abuse,  merel}^  idle  or  conjectural  suggestions  of 
l)rejudice  or  influence  ought  not  to  be  listened  to.  From 
the  very  mode  of  administering  justice  in  our  courts,  jurors 
are  in  almost  every  case  necessarily  more  or  less  brought  into 
contact  with  bystanders  or  strangers  to  the  controversy,  and 
we  must  be  careful  not  to  countenance  merely  fanciful  or 
imaginary  notions  of  prejudice  to  the  parties  resulting  there- 
from." 1 
^  Hager  v.  Hager,  38  Barb.  92,  100,  102. 


§   350.]  READING  NEWSPAPERS  GENERALLY.  411 

(4.)  In  Cases  of  Misdemeanor  the  rule  is  no  doubt 
the  same  as  in  civil  cases. ^ 

§  350.  Reading  Newspapers  generally. —  Neither  will 
the  mere  fact  that  jurors  are  permitted  by  the  officers  of 
the  court,  during  the  progress  of  a  protracted  trial,  even  for 
a  capital  offense,  to  read  the  newspapers,  of  itself  furnish 
o^round  for  a  new  trial.''  Durino-a  trial  in  the  United  States 
Circuit  Court,  of  several  prisoners  indicted  for  the  capital 
felony  of  robbery  on  the  high  seas,  which  trial  lasted  for 
fifteen  days,  considerable  indulgence  had  been  extended  to 
the  jury  by  the  court,  upon  consent  of  counsel,  in  respect  of 
refreshments,  and  communicating  with  their  friends  on 
business.  While  the  trial  was  in  progress,  the  officers  in 
charge  of  the  jury,  through  a  mistake  as  to  their  duty, 
granted  them  the  indulgence  of  reading  the  newspapers,  the 
officers  first  inspecting  them,  and  cutting  out  everything 
that  in  any  manner  related  to  the  trial.  As  soon  as  the 
charge  was  given  to  the  jury,  they  were  not  allowed  to  see 
any  newspaper,  until  they  had  given  their  verdict  in  open 
rourt.  This  was  held  no  ground  for  a  new  trial.  Mr.  Jus- 
tice Story,  who  presided  at  the  trial,  said :  "So  far,  then, 
as  reading  the  newspapers  went,  there  is  not  the  slightest 
reason  to  believe  that  it  could,  or  did,  in  fact,  in  any  man- 
ner, whatsoever,  affect  the  verdict  or  influence  the  jury. 
The  evidence,  as  far  as  it  bears  on  the  point,  negatives  any 
supposition  of  this  sort.  And,  speaking  for  myself,  I  must 
say  that,  considering  the  protracted  nature  of  the  trial,  and 
the  necessary  privations  of  the  jury,  and  the  importance  of 
keeping  them  when  out  of  court  from  too  constant  meditation 
upon  the  subject  of  the  trial  while  it  was  yet  imperfectly 
before  them,  I  do  not  doubt  that  the  indulgence  had  a  ten- 
dency to  tranquilize  their  minds,  and  to  keep  them  in  a 
state  of  calmness  and  freedom  from  anxiety  highly  favor- 
able and  useful  to  the  prisoners  tliemselves.  AVithout 
doul)t  it  was  a  great  irregularity  in  the  officers  of  the  court, 
for  which  they  may  be  punishable,  to  have  granted  this  in- 

1  Ante,  §  317. 

2  United. States  v.  Gibert,  2  Sumn.  19,  81,  82. 


412  OirROPER  COMMUNICATIONS.  [CH.  XVII, 

dulgence  without  the  express  sanction  of  the  counsel,  or  of 
the  court.  I  am  not  aware  that  any  such  sanction  was 
given.  But  it  is  not  every  irroguhirity  of  officers  which 
would  justify  a  court  in  setting  aside  a  verdict  and  granting 
a  new  trial,  or  treating  the  matter  as  a  mistrial.  The  court 
must  clearly  see  that  it  is  an  irregularity,  which  goes  to  the 
merits  of  the  trial,  or  justly  leads  to  the  suspicion  of  an  im- 
proper influence  or  effect  on  the  conduct  or  acts  of  the 
jurors.  We  must  take  things  as  they  are  in  our  days. 
Juries  cannot  now,  as  in  former  ages,  be  kept  in  capital 
cases  upon  bread  and  water,  and  shut  up  in  a  sort  of  gloomy 
imprisonment,  with  nothing  to  occupy  their  thoughts.  It 
would  probably  be  most  disastrous  to  the  administration  of 
justice,  and  especially  to  prisoners,  to  attempt,  in  these 
days,  the  enforcement  of  such  rigid  severities,  so  repugnant 
to  all  the  usual  habits  of  life.  And,  for  one,  I  am  not  sat- 
isfied that  the  irregularity  in  the  present  case  has  been  in 
the  slightest  manner  prejudicial  to  the  prisoners  ;  but,  on  the 
contrary,  as  far  as  the  evidence  leads  me  to  any  conclusion,. 
I  should  deem  it  favorable  to  the  prisoners.  The  indul- 
gence ceased  the  moment  when  the  charge  was  given,  and 
the  jury  were  then  put  upon  their  own  solemn  and  exclu- 
sive deliberations  on  the  case."  ^ 

Even  where,  in  a  capital  trial,  before  the  whole  jury 
was  impanelled,  some  of  the  jurors,  while  in  the  jury- 
box  in  the  presence  of  the  court,  and  with  the  knowledge 
of  the  counsel  for  the  accused,  read  a  newspaper  containing 
a  diatribe  against  one  of  the  counsel  for  the  prisoner,  and 
no  exception  was  taken  to  this  at  the  time,  it  was  held  no 
ground  for  a  new  trial .^  And  where,  on  such  a  trial,  during 
a  recess  of  the  court,  the  jury  being  in  the  court-room 
where  there  was  an  open  window,  one  of  the  jurors,  seeing 
a  newspaper  in  the  hands  of  a  spectator  outside,  asked  him 
for  it,  and  the  latter  handed  it  to  him,  saying,  "  Certainly," 
"  You  are  welcome,"  or  something  of  the  kind,  but  not 
speaking  with  reference  to  the  case,  and  the  juror  glanced 

1  United  States  v.  Gibert,  2  Sumner,  19,  82. 
^Iluuter  V.  State,  43  Ga.  484,  524. 


§  351.]  READING  NEWSPAPER  REPORTS  OF  THE  TRIAL.  413 

over  the  eastern  dispatches,  and  banded  the  paper  back  to 
the  person  from  whom  he  had  borrowed  it, —  as  there  was  in 
this  conduct,  though  imprudent,  no  possible  injury  to  the 
defendant,  it  Avas  held  no  ground  for  a  new  trial, ^ 

§  351.  Reading-  Newspaper  Reports  of  the  Trial. — 
The  rule  which  excludes  books,  papers  and  documents,  not 
in  evidence,  from  the  jury-room,^  seems  to  point  to  the 
propriety  of  carefully  excluding  from  the  minds  of  the 
jury  newspaper  reports  of  the  trial,  and  making  the 
reading  of  such  reports  a  ground  for  a  new  trial. ^  In 
criminal  cases,  and  especially  in  capital  felonies,  where 
members  of  the  jury  are  permitted  to  read  editorial  com- 
ments unfavorable  to  the  accused,  a  new  trial  ought 
always  to  be    granted.*      It   has,  however,  been    held    by 


i  State  V.  Anderson,  4  Nev.  266,  278. 

2  Post,  ch.  XIX. 

3  Thrall  v.  Smiley,  9  Cal.  529,  537;  Farrar  v.  State,  2  Oh.  St.  54,  57. 
^Palmore  v.  State,  29  Ark.  248;  Walker  v.  State,  37  Tex.  366,  389; 

Com.  V.  Landis,  12  Phila.  576.  During  the  trial  of  William  McKee, 
in  1876,  indicted  for  conspiracy  to  defraud  the  Government,  this  ques- 
tion came  up  under  peculiar  circumstances.  McKee  was  the  principal 
owner  of  the  St.  Louis  Globe-Democrat,  an  old  citizen  of  St.  Louis,  and  a 
Hepublican  politician  of  influence.  The  St.  Lotiis  Bepuhlican  was  a 
Democratic  newspaper,  a  rival  in  business  of  the  Globe-Democrat.,  and 
judging  from  the  tone  of  its  editorials  at  that  time,  its  proprietors  were 
bitterly  hostile  to  McKee.  After  the  testimony  in  the  case  had  all  been 
heard  by  the  jury,  a  "  leader"  appeared  in  the  Bepnblican,  evidently  in- 
tended to  be  read  by  tlie  jury,  entitled,  "  What  the  jury  will  read."  The 
article  exhibited  a  decided  bias  against  the  defendant  on  trial.  Two 
copies  of  the  paper  which  contained  it  were  purchased  by  members  of 
the  jury,  but  there  was  no  proof  that  the  article  was  read  bj'  any  of  them. 
The  jury  were  under  instructions  which  permitted  them  to  read  reports 
of  the  trial,  but  not  editorial  comments  upon  the  case.  It  was  held 
(Dillon  and  Treat,  JJ.),  that  this  was  no  ground  for  a  new  trial,  Dil- 
lon, J.,  saying:  "  The  third  ground  of  the  motion  for  a  new  trial  is  in 
respect  to  the  newspaper  article;  and  in  the  judgment  of  both  of  us, 
that  was  an  improper  article  to  be  published  when  the  jury  was  about  to 
take  the  case  under  consideration,  if  it  was  intended  it  should  be  read 
by  them.  The  courts  before  they  were  disabled  by  acts  of  Congress, 
treated  all  articles  calculated  to  influence  the  result  of  a  pending  case, 
as  contempts  of  their  authority,  and  punished  the  writers  of  such  arti- 
cles accordingly.  Now,  that  article  cannot  be  read  without  showing 
that  there  was  a  bias,  at  all  events,  against  the  defendant.  That  is  un- 
d  jn'.able,  and  if  there  was  good  reason  to  believe  that  that  article  had  been 


414  IMrROPER  COIVOIUNICATIONS.  [CH.  XVII. 

niaiiv  courts,  even  in  ciq)ital  cases,  tliat  the  mere  fact 
that  members  of  the  jury  have  been  permitted  to  read  such 
reports,  is  not  ground  for  ti  new  trial,  unless  the  reports 
themselves    contain    something  of    a  tendency  to  influence 

read  by  the  jury,  and  had  inlhicneeil  their  verdict  —  if  it  was  shown 
here  conchi>ively  that  it  had  been  read  liy  tlieiii  —  we  might  be  obliged, 
though  we  would  be  otherwise  satistied  with  the  verdict,  on  legal  prin- 
ciples, and  following  established  precedents  in  this  regard,  to  give  the 
defendant  a  new  trial.  I  make  these  remarks  because  it  ought  to  be  un- 
derstood that  all  attempts  to  influence  the  public  mind,  and  particularly 
to  influence  jurors  when  they  have  a  case,  civil  or  criminal,  before  then), 
are  improper;  and,  I  think,  when  journalists  —  respectable  journalists — 
understand  this,  they  will  act  acc?ordingly.  But  it  is  to  be  remembered 
in  tliis  case  that  we  said  to  the  jurj',  after  having  first  prohibited  the 
reading  of  papers:  'You  may  read  papers  containing  a  report  of  this 
trial,  but  you  must  not  read  any  editorial  comments  or  articles  criticising 
the  trial  one  wa}'  oi-  the  other.'  It  is  in  evidence  tliat  this  article  was 
published,  but  there  is  the  affidavit  of  no  juror,  or  other  person,  that  it 
was  ever  read.  Mr.  Stevens,  the  bailiff,  testifies  that  two  copies  of  the 
paper  were  bought  by  the  jury,  but  no  witness  stated  that  this  article 
was  ever  read  by  a  juror.  Xow,  in  view  of  the  fact  that  we  had  cau- 
tioned the  jury  against  reading  such  articles,  and  this  article  disclosed 
that  it  was  an  imi^roper  one  by  the  very  heading  of  it,  shall  we  suppose 
that  the  juiy  disregarded  their  duty  without  anj'  showing,  or  must  we 
suppose  that  they  did  not?  That  is  a  matter  that,  if  it  were  true,  could 
have  been  shown  by  the  aflidavit  of  jurors,  but  there  is  no  such  affida- 
vit; and  on  that  ground  we  think  that  the  motion  for  a  new  trial  must 
fail,  the  same  as  the  others."  United  States  v.  McKee,  3  Cent.  L.  J. 
258,  259.  This  decision,  it  is  believed,  cannot  be  supported  either  by 
precedent  or  on  principle.  The  able  and  humane  judge  wlio  rendered 
it  has  been  censured  for  mitigating  the  punishment  of  McKee  to  impris- 
onment in  the  county  jail,  instead  of  the  penitentiary;  his  real  fault  was 
that  he  did  not  grant  him  a  new  trial.  The  case  excited  great  interest. 
Reporters  were  present,  representing  the  daily  papers  of  the  principal 
cities  of  the  Union.  A  paper  owned  by  the  defendant  hin)self  was  pub- 
lishing a  verbatim  report  of  the  trial.  Under  these  circumstances,  per- 
mission given  to  the  jury  to  read  newspaper  reports  of  the  trial  was  an 
extraordinary  indulgence,  whether  regard  be  hacl  to  the  rigiits  of  the 
Government  or  to  those  of  the  prisoner.  It  was  scarcely  possible  that 
such  reports  would  not  exhibit  the  bias  of  their  authors,  and  that  they 
would  not  be  accompanied  by  editorial  comments  which  it  would  be  im- 
possible to  keep  from  the  jury.  Under  the  peculiar  constitution  of  the 
Federal  Courts,  no  appeal  or  writ  of  error  is  allowed  in  a  criminal  case, 
and  McKee  had  no  oppoitunity  to  take  the  judgment  of  an  appellate 
court  upon  this  question,  it  can  scarcely  be  doubted  what  the  judgment 
of  an  appellate  tribunal  upon  the  question  as  there  presented  would 
have  been. 


§   351,]   READING  NEWSPAPER  REPORTS  OF  THE  TRIAL.  415 

the  minds  of  the  jurors  reading  them  to  the  prejudice  of 
the  prisoner,^  and  the  affidavits  of  jurors  will,  it  seems,  he 
looked  to  for  the  purpose  of  showing  that  they  Avere  not  so 
prejudiced.^  Much  less  will  the  mere  fact  that  such  matter 
gets  accidentally  into  the  jury-room  in  civil  trials,^  especially 
if  not  read  by  any  of  the  jurors,  be  ground  for  disturbing 
their  verdict.''  Thus,  during  the  trial  of  a  capital  case,  a 
newspaper,  containing  what  purported  to  be  a  report  or 
abstracts  of  the  evidence  introduced  at  the  trial,  was  seen 
b}^  two  or  three  of  the  jurors,  who  read  but  a  small  portion 
of  them.  The  newspaper  contained  no  editorial  com- 
ments on  the  evidence  or  the  merits  of  the  case.  In  tiie 
opinion  of  the  court  there  was  not  the  slightest  ground  to 
suspect  that  any  juror  had  been  misled  by  any  of  these  re- 
ports. The  juror  who  read  most  of  them  said  they  made 
no  impression  upon  him.  The  paper  which  contained  them 
was  freely  used  and  referred  to  l)y  counsel,  from  time  to 
time,  before  the  court  and  jury.  It  was  held  that, 
although  the  officers  were  in  fault  in  permitting  the  paper  to 
go  into  the  hands  of  the  jury,  yet  there  being  no  ground  to 
suspect  that  the  result  of  the  trial  was  in  the  least  degree 
influenced  thereby,  a  new  trial  would  not  be  granted.' 

So,  where  a  person  testified,  merely  upon  information  and 
belief,  that  slips  of  a  newspaper  and  a  law-book  containing 
the  evidence  given  on  a  former  trial  of  the  same  case,  were 
left  m  the  room  where  the  jury  deliberated  on  their  ver- 
dict, and  that  he  was  informed  and  believed  that,  while  so 
deliberating,  the  jury  read  from  said  newspaper  slips  what 
purported  to  be  the  evidence  on  the  former  trial,  and  from 
said  law-book  the  evidence  on  the  former  trial  as  published 

1  United  States  v.  Reid,  12  How.  (U.  S.)  361,  366;  s.  c,  3  Hughes, 
509;  State  v.  Cucuel,  31  N.  J.  L.  249,  263;  People  v.  Gaffaey,  14  Abb. 
Pr.  (N.  S.)  36. 

2  Uaited  States  v.  Reid,  supra ;  State  v.  Cucuel,  supra ;  Chicago  v. 
Derniody,  61  111.  431;  United  States  v.  McKee,3  Cent.  L.  J.  258,  259. 

3  Thrall  v.  Smiley,  9  Cal.  529. 
<  Chicago  V.  Dermody,  supra. 

5  State  V.  Cucuel,  31  N.  J.  L.  249,  263.  See  also  Flanegau  v.  State,  64 
Ga.  52. 


41  n  OIPROPER  COINIMUNICATIONS.  [CH.  XVII. 

in  the  .same, —  it  was  held  that  this  was  not  suflScient  to  war- 
rant a  new  trial. ^  But  where,  in  a  capital  case,  the  charge 
of  the  court  was  not  in  writing,  but  the  jury  during  their 
deliberations,  read  and  made  use  of  a  newspaper  report  of 
a  material  portion  of  the  charge,  it  was  held  that  the  ver- 
dict must  be  set  aside,  although  the  trial  judge  recognized 
the  report  as  correct.^  It  has  been  held  in  a  capital  case 
that,  where  the  prisoners'  counsel  observed  a  juror  reading 
a  newspa})er  containing  comments  unfavorable  to  the  pris- 
oners, and,  after  private^  calling  the  attention  of  the  judge 
to  it,  concluded  that  it  was  best  to  have  no  public  notice 

1  People  V.  Williams,  24  Cal.  31,  38.  After  stating  that  an  affidavit, 
based  merely  upon  information  and  belief,  which  does  not  state  from 
whom  the  information  was  derived,  will  not  be  sufficient  ground  to  im- 
peach a  verdict  because  of  misconduct  of  the  jury,  Sawyer,  J.,  said: 
'■  It  does  not  appear  by  whom  or  how  these  slips  and  books  were  left  in 
the  court  room.  Admitting  that  they  were  left  as  alleged,  non  constat, 
that  they  were  not  left  by  the  prisoner  himself,  or  by  some  party  on  his 
behalf,  for  the  very  purpose  of  vitiating  the  verdict  in  case  it  should  be 
against  him.  It  is  not  pretended  that  thej'  were  introduced  surrepti- 
tiously on  the  part  of  the  people  for  tiie  purpose  of  influencing  the  ver- 
dict, or  that  the  district  attorney  or  the  judge  was  aware  of  their  being 
left  in  the  court  room.  Xor  does  it  appear  that  the  printed  matter  so 
left  was  not  a  perfectly  correct  transcript  of  the  evidence,  or  that  it  in 
any  particular  differed  from  the  evidence  given  before  the  jury  on  the 
trial.  It  does  not  appear,  except  by  the  affidavit  of  the  prisoner,  upon 
information  and  belief  merely,  unsupported  by  other  evidence,  that  it 
even  came  to  the  knowledge  of  the  jury  that  the  obnoxious  papers  were 
in  the  room  where  the  jury  were  deliberating.  It  is  not  to  be  presumed 
that  the  jurors  violated  their  duty  by  hunting  up  and  reading  evidence 
not  given  to  them  in  the  progress  of  the  trial  in  open  court,  under  the 
sanction  of  the  judge.  The  presumption  is  that  they  performed  their 
duty  in  accordance  with  the  oath  which  they  had  all  taken  before  entering 
upon  the  trial  of  the  case.  To  overthrow  this  presumption  there  must  be 
some  direct  positive  testimony  tending  to  show  misconduct  on  the  part 
of  the  jurors  in  this  particular.  It  is  not  enough  that  this  objectionable 
matter  was  inadvertently  left  in  the  room,  Avith  other  books  and  papers, 
where  the  jury  might  by  chance  have  found  it..  There  must  be  some 
positive  testimony,  by  some  person  wlio  has  knowledge  of  the  fact  which 
he  states,  showing  that  the  jurors,  or  some  one  of  them,  read  the  testi- 
mony referred  to,  or,  at  least,  that  they  found  it,  or  that  it  in  some  way 
came  to  their  notice.  No  such  testimony  is  produced  in  this  case,  and  the 
court,  therefore,  did  not  err  in  denying  a  new  trial,  or  in  refusing  to 
arrest  the  judgment." 

2  Farrar  v.  State,  2  Ohio  St.  54,  57.    Bartley,  C.  J.,  dissented. 


§   352.]  BETWEEN  JURORS  AND  WITNESSES.  417 

taken  of  it,  the  irregularity  was  thereby  ivaived  and  the 
prisoners  coukl  not  insist  upon  it  as  a  ground  for  a  new 
trial. 1 

§  352.  Coranmnications  between  Jurors  and  Witnesses. 
—  Whether  the  fact  that  a  witness  makes  statements  con- 
cerning the  merits  of  the  cause  on  trial,  in  the  presence  and 
hearing  of  a  juror  will  be  ground  for  a  new  trial,  will  of 
course  depend  upon  the  nature  of  the  communication, 
whether  it  was  calculated  to  prejudice  the  mind  of  the  juror, 
against  the  losing  party,  and  other  circumstances.  Re- 
marks made  to  jurors  by  witnesses  will  obviously  be  scanned 
more  closely  than  those  made  by  mere  bystanders. ^  Where, 
after  making  such  a  statement  in  the  presence  of  a  juror 
the  witness  was  recalled,  and,  being  interrogated  by  the 
juror,  made  the  same  statement  under  oath,  it  was  held  that 
there  was  no  ground  for  a  new  trial.^  And  where  the  con- 
versation  took  place,  without  any  evil  intention,  so  near 
some  of  the  jurors  that  they  might  have  heard  it,  and  the 
verdict  was  clearly  right,  the  court  refused  to  set  it  aside, 
though,  had  it  been  of  doubtful  propriety,  they  might  have 
done  so.*  So,  where,  during  the  trial  of  a  civil  cause,  a 
juror  said  to  a  witness  for  the  successful  party,  that  "  they 
could  throw  the  costs  of  the  action  upon  the  defendant,  of 
course,"  to  which  the  witness  replied  that  "they  could,  of 
course,"  it  was  held  that  this  conduct  on  the  part  of  the 
juror,  though  reprehensible,  did  not  indicate  such  a  bias  as 
disqualified  him  from  sitting  in  the  cause.  It  rather  im- 
plied that  he  had  not  made  up  his  mind,  than  that  he  had. 
It  showed  that  he  was  willing  to  converse  on  the  subject 
and  to  hear  what  others  had  to  say,  but  it  did  not  show  that 
he  was  biased  in  his  opinions,  or  corrupt  in  his  motives.'^ 
Neither  would  the  same  court  set  aside  a  verdict,  in  a  case 

1  Bulliner  v.  People,  95  111.  394.     See  ante,  §§  303,  339. 

2  Woolsey  v.  White,  7  Bradw.  (111.)  277. 

^  Thrift  V.  Kednian,  13  Iowa,  25.  It  should  be  added  that  the  court 
said  that  the  matter  stated  by  the  witness  was  quite  as  favorable  to  the 
unsuccessful  as  to  the  successful  party. 

*  Jones  V.  Vail.  30  N.  J.  L.  135. 

5  Mcllvaine  v.  Wilkins,  12  N.  H.  474. 

(27) 


418  IMPROPER  COMMUNICATIONS.  [CH.  XVII. 

of  felony,  l)ccause  a  witness  liad  used  harsh  hinguagc 
against  tlie  i)risoner  in  a  bar-room,  in  the  presence  of  a 
juror,  it  a})[)caring  that  he  was  not  cmpk)ycd  to  influence 
the  juror,  and  that  he  was  not  attempting  to  do  so.^  Inad- 
vertent and  l)oastful  talk  of  a  witness  about  some  circum- 
stance not  connected  with  the  case,  was  held,  even  though 
accompanied  by  an  expression  of  his  o})inion  as  to  the 
merits  of  the  case,  to  be  no  ground  for  a  new  trial,  where 
it  was  overheard,  unknown  to  the  witness,  by  a  juror,  and 
the  juror  swore  that  it  had  no  influence  on  his  mind.''^  80, 
of  an  observation  passed  between  a  juror  iuid  a  witness 
which  rehited  solely  to  the  mechanical  execution  of  a  map 
which  was  used  at  the  trial  .^ 

But  the  rule  which  limits  the  attention  of  the  jury  to  evi- 
dence which  has  been  offered  at  the  trial,  exacts  that  a  com- 
nmnication  between  a  vvitness  and  a  juror.,  as  to  what  the 
witness  testifled  to  at  the  trial,  should  afford  ground  for  a 
new  trial,  at  least,  if  there  is  reason  to  sui)pose  that  preju- 
dice to  the  losing  party  may  have  resulted  from  it.  It  was 
so  held  Avhere  a  juror,  during  an  adjournment  of  court  in  a 
civil  case,  asked  a  witness  if  he  had  not  testified  to  a  certain 
fact,  and  the  witness  said  that  he  had.*  And  a  new  trial 
lias  been  granted  merely  because  a  witness  was  guilty  of 
the  indiscretion  of  conversing  about  the  cause  with  a  juror 
Avho  had  not  been  sworn,  but  who  Avas  afterwards  sworn 
and  sat  in  the  case.^     These  cases,  however,  seem  to  go  too 

1  State  V.  Ayer,  23  N.  H.  301,  320,  the  court  saying:  "It  would  be 
•extremely  unsafe  to  establish  it  as  a  principle  that  upon  such  evidence 
us  this  a  verdict  might  be  set  aside.  In  all  communities  every  trial  of 
interest  calls  forth  more  or  less  idle  remark,  ignoiant  prejudice  and  bit- 
ter feeling,  and  cverj'  man  who  lires  in  the  world  and  is  conijjetent  to 
try  a  case  is  exposed  to  meet  with  such  inlliclions.  In  general  we  ad- 
mit and  lament  tlieir  existence,  but  pass  them  by  as  evils  for  which  we 
have  no  remedy  williout  reforming  tlie  world.  It  is  only  when  they 
assume  a  tangible  shape  and  create  such  a  bias  in  the  minds  of  jurors  as 
to  unfit  them  for  the  duty  of  impartiallj'  trying  a  case,  that  the  court 
can  interfere." 

'  Jackson  v.  Jackson,  32  Ga.  325,  335. 

«  Tiernan  v.  Trewick,  2  Utah,  393. 

•♦  Vanmotcr  v.  Kitzniiller,  5  W.  Va.  381. 

^  Meneh  v.  Bolbach.  4  Phila.  G8. 


^   355.]  BETWEEN  JURORS  AND  THE  JUDGE.  419 

far.  It  is  not  perceived  why  the  successful  party  should 
have  been  deprived  of  his  verdict,  because  a  juror  may 
have  so  far  forgot  his  duty  as  to  communicate  with  a  wit- 
ness, if  it  appeared  that  the  communication  was  of  such  a 
nature  as  not  to  prejudice  the  losing  party,  and  if  the  ver- 
dict was  otherwise  fairly  and  legally  obtained.  But  where, 
in  an  action  for  the  conversion  of  two  head  of  cattle,  the 
jury  were  sent  out  to  view  the  animals,  and,  contrary  to 
tlie  provisions  of  the  statute,  a  number  of  witnesses  went 
with  them,  and  one  of  the  witnesses  made  a  remark,  shown 
to  be  untrue  in  fact,  but  upon  which  the  verdict  was  ob- 
viously based,  a  new  trial  was,   with  propriety,  granted.^ 

§  353.  Hearing- Testimony  after  retiring-. —  It  is  settled, 
and  upon  grounds  too  obvious  for  discussion,  that  if  a  jury, 
after  retiring  to  consider  of  their  verdict,  presume  to  call 
witnesses  before  them,  or  to  hear  other  testimony,  it  will 
be  ground  for  a  new  trial.-  Where,  therefore,  after  the 
jury  retired,  a  witness,  who  had  been  examined  on  the  trial, 
was  sent  for  by  them,  admitted  into  their  room,  and  re-exam- 
ined, without  the  knowledge  or  consent  of  the  court  or  of 
the  parties,  a  new  trial  was  granted.^ 

§  354.  Visiting  the  Locus  in  Quo. —  For  like  reasons,  if 
the  jurors,  or  some  of  them,  without  the  permission  of  the 
court  or  the  con&ent  of  the  losing  party,  visit  the  place  or 
view  the  thing  in  controversy,  the  verdict  will  be  set  aside. 
It  will  be  done  for  stronger  reasons  where  the  jurors  are 
procured  to  commit  this  misconduct  by  the  successful 
party." 

§  355.  Judge  may  not  privately  communicate  with  the 
Jury. —  ( 1. )  Stringent  JSFatuve  of  this  Rule. —  Although  the 
judge  has  power  to  recall  the  jury  in  order  to  give  them  in- 
structions whenever  he  considers  it  necessary  to  do  so,  yet  he 

1  Erwin  v.  Bulla,  29  Iiid.  95. 

2  Hudson  V.  State,  9  Yerg.  408,  410;  Booby  v.  State,  4  Yerg.  Ill;  Lut- 
trell  V.  Maysville,  etc.,  R.  Co.,  18  B.  Mon.  291;  State  v.  Brazil,  2  Ga. 
Dec.  107;  Smith  v.  Graves,  1  Brev.  16;  Deacon  v.  Shreve,  22  N.  J.  L. 
17(1.    See  also  Offit  v.  Vick,  Walk.  (Miss.)  99. 

3  Luttrell  V.  Maysville,  etc.  R.  Co.,  sxipra. 
<  Deacon  v.  Shreve,  22  N.  J.  L.  176. 


420  IMriiOPER  COMMUNICATIONS.  [CH.  XVII. 

van  only  do  so  in  the  presence  of  the  parties  or  their  coun- 
sel, and,  in  trials  for  felony,  in  the  presence  of  the  prisoner. 
On  the  one  hand,  he  is  at  liberty  to  recall  the  jury  and  give 
them  additional  instructions  until  he  has  fully  possessed 
their  minds  of  the  law  of  the  case  ;  on  the  other,  he  is  al)- 
solutely  prohibited,  as  much  as  a  private  person  is,  from 
holding  any  private  communication  with  them.^  He  may 
not  go  into  the  jury  room  where  they  are  deliberating,^  even 
for  the  purpose  of  giving  them  additional  instructions,''  to 
withdraw  erroneous  instructions  which  he  has  given  them,* 
to  answer  certain  questions,^  to  expound  his  charge  to 
them,^  or  even  to  inform  them  that,  should  they  desire  any 
further  information  on  questions  of  law,  they  should  ask 
him  for  it,  although  he  hold  no  other  communication  with 
them.^  Nay,  if  he  pass  through  their  room  and  there  do 
nothing  more  than  suffer  them  to  put  certain  questions  to 
him  without  answering  them,^  or  decline  to  expound  his  in- 
structions to  them,"  it  Avill  be  ground  for  a  new  trial.  It 
has  been  so  held  where  the  judge  wrote  a  letter  to  the  jury 

1  Sargent  v.  Roberts,  1  Pick.  337;  Hoberg  v.  State,  3  Minn.  262;  Wa- 
tertown  Bank  v.  Mix,  51  N.  Y.  558;.  Plunkett  v.  Appleton,  9  Jones  &  Sp. 
159;  s.  c,  51  How.  Pr.  4G9.  See  Davis  v.  Fisli,  1  G.  Greene,  406;  Read 
V.  Cambridge,  124  Mass.  567;  State  v.  Patterson,  45  Vt.  308. 

2  Crabtree  v.  Hagenbaugh,23  Til.  349. 

3  Fish  V.  Smith,  12  Ind.  563;  Sargent  v.  Roberts,  1  Pick.  337;  Moodj' 
V.  Pomeroy,  4  Denio,  115;  Taylor  v.  Betsford,  13  Johns.  487.  "As  a 
question  of  practice,"  say  the  Supreme  Court  of  Illinois,  -'we  do  not 
tliink  it  isproper  for  any  juror  to  communicate  to  the  court,  in  writing  or 
verbally,  in  reference  to  any  matter  belonging  to  the  case.  If  they  desire 
to  communicate  with  the  court,  they  should  send  a  request  to  the  court 
through  the  oflfieer  in  attendance,  that  they  may,  in  a  body,  be  brought  into 
court.  Xor  do  we  think  it  good  practice  for  the  court  to  permit  an\^  one 
of  the  jurors,  whilst  they  are  deliberating,  to  leave  the  jury-room  and 
come  into  court,  and  hold  a  conversation  with  the  court,  or  that  the 
court  should  make  such  a  request  of  the  foreman,  or  of  any  other  mem- 
ber of  the  jury."    Fisher  v.  People,  23  111.  283,  295. 

"Hall  V.  State,  8  Ind.  439,  444. 

•'  Taylor  v.  Betsford,  13  Johns.  487. 

"  Kirk  v.  State,  14  Ohio,  511. 

'  Hoberg  v.  State,  supra. 

'■  Benson  v.  Clark,  1  Cowen,  258. 

^  Crabtree  v.  Hagenbaugh,  23  111.  349. 


§    355.]  BETWEEN'  JURORS  AND  THE  JUDGE.  421 

after  they  had  so  retired  ;  ^  where,  at  their  request,  he  sent 
a  certain  paper  to  them  in  the  absence  of  counsel  ;  '^  where 
he  sent  to  them  a  Avritten  instruction  by  the  bailiff,  in  an- 
swer to  a  request  made  by  them  in  writing  for  additional 
instructions  ;  ^  where  he  sent  a  written  repl}'^  to  a  note  from 
the  jury  asking  him  hoAV  a  certain  witness  had  testified  ;  * 
where  the  ofiicer  presiding  at  a  trial  before  a  sheriff's  jury 
gave  an  instruction  to  them  in  a  matter  of  law,  in  the  jury- 
room,  after  they  had  retired  to  deliberate  on  their  verdict, 
in  the  absence  of  the  parties  and  their  counsel  ;  ^  where  the 
jury  sent  a  written  inquiry  to  the  judge  as  to  whether  a  par- 
ticular witness  had  sworn  to  a  certain  fact,  and  the  judge 
handed  the  note  to  the  short-hand  reporter  who  had  taken 
the  testimony,  and  he  indorsed  an  answer  upon  it,  which 
the  judge  returned  to  the  jury,  without  notifying  coun- 
sel.^ 

(2.)  Reasons  on  whicli  it  vests. —  It  will  be  seen  that 
some  of  these  cases  take  the  extreme  ground  that  the  fact 
that  any  communication  whatever  took  place  between  the 
judge  and  the  jurj^  otherwise  than  in  open  court,  is  ground 
for  a  new  trial,  although  no  harm  in  the  particular  case  re- 
sulted from  it.  They  proceed  on  the  same  ground  which 
some  of  the  courts  take  with  reference  to  cases  where  com- 
munications are  shown  to  have  been  made  between  jurors 
and  other  persons,  that  it  is  so  dangerous  and  impolitic  to 
allow  such  communications  to  be  made,  that  they  will  be 
conclusively  presumed  to  have  influenced  the  jury  improj)- 
erly.  Sucli  is  the  ground  taken  by  the  Supreme  Judicial 
Court  of  Massachusetts  in  the  leading  case  of  Sargent  v. 
lloherts^  where  Parker,  C.  J.,  in  giving  the  judgment  of  the 
•court,  said  :  "As  it  is  impossible,  we  think,  to  complain  of  the 

i  State  V.  Patterson,  45  Vt.  308;  Watertown  Bank  v.  Mix,  51  N.Y.SSS; 
Pluukett  V.  Appleton,  9  Jones  &  Sp.  159;  s.  c,  51  How.  Pr.  469. 
2  Benson  v.  Clark,  1  Cowen,  258. 
'^  O'Connor  v.  Guthrie,  11  Iowa,  80. 
■*  Watertown  Banl<  v.  Mix,  51  X.  Y.  558. 
5  Read  v.  Cambridge,  124  Mass.  567. 
«  Watertown  Bank  v.  Mix,  51  N.  Y.  558. 
7  1  Pick.  337,  341. 


422  IMPROPER  COMMUNICATIONS.  [CII.  XVII. 

substance  of  the  coiniiiuiiic;ilion,thc  only  (lucstiou  is,  whether 
any  communication  at  all  is  [)roi)er  :  and  if  it  was  not,  the 
party  against  whom  the  verdict  was,  is  entitled  to  a  new  trial. 
And  we  are  all  of  opinion,  after  considering  the  question 
maturely,  that  no  communication  whatever  ought  to  take 
place  between  the  judge  and  the  jury,  after  the  cause  has 
been  committed  to  them  by  the  charge  of  the  judge,  un- 
less in  open  court,  and,  where  practicable,  in  presence  of 
the  counsel  in  the  cause.  The  oath  administered  to  the 
otiicer  seems  to  indicate  this  as  the  proper  course  :  '  He  is  to 
suffer  no  person  to  speak  to  them,  nor  to  speak  to  them 
himself,  unless  to  ask  them  whether  they  are  agreed  ; '  and 
he  is  not  to  suffer  them  to  separate  till  they  are  agreed, 
unless  by  order  of  court.  When  the  court  is  adjourned,  the 
judge  carries  no  power  with  him  to  his  lodgings,  and  has 
no  more  authority  over  the  jury  than  any  other  person,  and 
any  direction  to  them  from  him,  either  verbal  or  in  writ- 
ing, is  improper.  It  is  not  sufficient  to  say  that  this  power 
is  in  hands  highly  responsible  for  the  proper  exercise  of  it ; 
the  only  sure  way  to  prevent  all  jealousies  and  suspicions,  is 
to  consider  the  judge  as  having  no  control  whatever  over  the 
case,  except  in  open  court  in  presence  of  the  parties  and 
their  counsel.  The  public  interest  requires  that  litigating 
parties  should  have  nothing  to  complain  of  or  suspect  in 
the  administration  of  justice,  and  the  convenience  of  jurors 
is  of  small  consideration  compared  with  this  great  object. 
If,  by  reason  of  the  long  intervals  between  the  sessions  of 
the  court,  jurors  here  are  subjected  to  inconveniences  which 
do  not  exist  elsewhere,  this  must  be  remedied  by  holding 
two  sessions  a  day  instead  of  one.  It  is  better  that  every- 
body should  suffer  inconvenience,  than  that  a  practice 
should  be  continued  which  is  capable  of  abuse,  or  at  least 
of  being  a  ground  of  uneasiness  and  jealousy." 

(3.)   A    Contrary  Rule  in  New  Ham.psliire. —  In  New 

Hampshire,  a  different  practice  under  this  head  from  that 

obtaining  in  other  jurisdictions,  has  grown  up,  and  has  come 

to  be  too  well  settled  to  l)e  disturbed.     There,  it  is  said  : 

*  The  court  may  communicate  with  the  jury  after  its  ad- 


§  355. J      BETWEEN  JUROES  AND  THE  JUDGE.  423 

journmeiit,  upon  their  request,  so  far  as  to  give  them  in- 
structions upon  matters  of  law,  although  the  counsel  of  the 
parties  are  not  present.  The  communications  are  in  the 
nature  of  new  instructions,  and  should  be  in  writing,  and 
returned  by  the  jury  on  their  coming  into  court,  with  the 
papers  in  the  case.  If  there  be  any  error  in  the  new  in- 
structions, the  parties  have  their  remedy  by  exception,  in 
the  same  manner  as  if  they  had  been  given  in  open  court. 
By  this  course  cases  are  often  terminated  that  otherwise 
would  not  be,  and  injustice  is  done  to  no  one."  The  rule  laid 
down  in  Sargent  v.  Roberts,^  that  no  communication  what- 
ever ought  to  take  place  between  the  judge  and  the  jury 
after  the  cause  has  been  committed  to  them,  unless  in  open 
court,  is  not  recognized  in  that  State.^  But  this  practice  in 
New  Hampshire  appears  to  be  limited  to  cases  where  the 
jury  merely  desire  additional  instructions  upon  questions  of 
law,  "If  the  jury,  after  an  adjournment,  put  a  question 
respecting  the  facts  of  the  case,  to  the  court,  it  will  be  irreg- 
ular to  state  the  evidence  relating  to  it ;  but  if  they  desire 
instruction  upon  a  mere  question  of  law,  that  may  be  an- 
swered . "  ^ 

(4.)  Exception  also  in  South  Carolina. — In  South  Caro- 
lina, a  similar  exception  to  the  rule  obtains.  In  a  case  in 
that  State,  one  of  the  grounds  of  appeal  was  that  the  judge 
who  presided  at  the  trial  held  a  conversation  with,  or  made 
a  communication,  in  court,  to  the  foreman  of  the  jury,  after 
the  jury  had  retired  for  deliberation  on  the  case,  not  heard 
by,  and  not  communicated  to,  the  plaintiffs  or  their  counsel. 
The  court  held  that  this  was  no  error,  O'Neall,  J.,  who- 
delivered  the  opinion,  saying:  *«  The  administration  of  jus- 
tice in  a  court  necessarily  admits  a  large  share  of  discretion, 
unregulated  by  precise  rules,  from  the  presiding  judge. 
His  choice  to  the  position  which  he  holds,  his  continuance  in 

^IPifk.  a37,  342. 

2  School  District  No.  1  v.  Bragdon,  23  N".  H.  507,  517;  Shapley  v. 
White,  6  N.  H.  172;  Allen  v.  Aldrich,  29  N.  H.  63,  74;  Bassett  v.  Salis- 
bury Man.  Co.,  28  N.  H.  438,  457.     See  also  ante,  §  325. 

3  Shapley  v.  White,  6  N.  H.  172,  176.  The  court  tlednced  this  rule  from 
Thayer  v.  Van  Vleet,  5  -Johns.  Ill ;  Bunn  v.  Croul,  10  Johns.  239. 


424  IMPROPER  COMMUNICATIONS.  [CH.  XVII. 

it,  his  learning,  exporicneo  and  impartiality,  arc  supposed 
to  be  guards  enough  against  its  improper  exercise.  The 
intercourse  between  the  jury  and  the  bench  is,  in  many  res- 
pects, A'ery  contidential.  Often  the  connnunications  from 
the  jury  are  of  that  kind  which  ought  not  to  be  communi- 
cated to  the  bar.  The  case  before  us  is  an  ilhistration  of 
that.  To  have  communicated  the  foreman's  inquiry,  would 
have  been  to  announce  the  result  of  the  case  before  the  ver- 
dict Avas  published.  This  is  so  irregular  that  it  would 
have  furnished  much  better  ground  for  appeal  than  that 
under  consideration.  So,  too,  the  foreman  of  the  jury 
often  says  to  the  judge :  '  Wc  are  divided  ten  to  two  :  we 
cannot  agree  ;  what  are  we  to  do?  '  Is  that  to  be  conmiu- 
nicated  to  the  counsel?  Certainly  not.  There  can  be  but 
one  proper  rule  upon  the  subject ;  that  is,  to  trust  all  these 
matters  to  the  discretion  of  the  judge.  When  it  is  proper 
that  the  attention  of  the  bar  should  be  called  to  the  doubts 
of  the  jury,  it  will  be  done.  'From  the  first  organization  of 
our  judicial  system,  we  have  gone  on  without  difficulty 
under  the  discretionary  administration.  The  conndence  of 
the  bar  in  the  bench  has  prevented  anything,  in  the  shape  of 
suspicion,  from  doubting  the  propriety  of  the  administration 
oi'  justice  daily  administered  in  their  presence.  The  case 
from  Pickering^  seems  to  have  given  occasion  to  the  second 
ground.  That  case  is,  I  think,  of  very  questionable  propri- 
ety. For  even  to  hold,  after  the  jury  is  sent  out,  and  a 
constable  sworn  in  charge  of  them,  and  the  court  is  ad- 
journed over  to  the  next  day,  that  the  judge  should  have  no 
communication  with  them,  is,  I  think,  pushing  coyness  to 
the  very  verge  of  mere  prudery.  Honesty  in  everything 
goes  upon  the  motto,  'Think  no  evil.'  Whenever  a  man 
begins  to  think  that  he  is  suspected  of  dishonesty,  there  is 
irreat  dauirer  of  his  ])ein";  dishonest.  In  this  State  we  have 
never  pursued  any  such  practice.  Here  we  have  been  willing 
to  leave  it  where  it  should  be  left — to  the  discretion  of  the 
judge."  ■' 

'  Sargent  v.  Eoberts,  1  Pick.  337. 

2  Goldsmith  v.  Solomons,  2  Strobh.  L.  20G,  300. 


§    357.]  INSTRUCTING  IN  ABSENCE  OF  COUNSEL.  425 

§   35 G.    Otliervvise  where    the    Coinnuinication  is  open 

and  public. —  The  rule  is  otherwise  where  the  comuiuiiiea- 
tion  is  open  and  public,  in  the  presence  of  the  parties  or 
their  counsel.  "Nothing  is  more  common,"  say  the  Su- 
preme Court  of  Georgia,  "and,  in  our  judgment,  more 
proper,  than  for  the  jury,  by  a  committee  of  one  or  more 
of  their  body,  to  communicate  with  the  judge  relative  to  the 
cause,  in  open  court,  and  in  the  presence  of  the  parties  or 
their  attorneys,  and  the  world.  The  publicity  of  the  com- 
munication guards  it  from  all  objection,  as  well  as  all  impro- 
priety."^ Accordingly,  where  the  judge  sent  to  the  jury- 
room  by  the  bailiff  and  got  the  jDapers  and  filled  up  cer- 
tain blanks  in  a  pleading,  the  amendment  being  proper,  it 
was  held  no  ground  for  a  new  trial. - 

§  357.  Instructing"  the  Jury  in  the  Absence  of  Coun- 
sel.—  It  is  obvious  that  the  rule  does  not  extend,  in  all 
cases,  to  prohibiting  the  judge  from  giving  the  jury  addi- 
tional instructions  in  the  abs'ence  of  counsel.  If  it  did, 
counsel,  by  staying  away,  might  prevent  the  jury  from 
being  properly  instructed,  and  thus  work  a  failure  of  jus- 
tice. The  correct  rule  in  civil  cases,  therefore,  seems  to 
be  that  it  is  competent  for  the  judge,  on  the  request  of  the 
jury,  to  call  them  into  the  court  room  and  give  them  addi- 
tional instructions,  provided  the  counsel  on  both  sides  are 
present,  or  have  notice  and  an  opportunity  of  being  present.'^ 
But  if  he  send  to  them  a  private  instruction  in  their  room, 
on  a  material  question  in  the  case,  without  the  knowledge 
or  consent  of  the  parties  or  their  counsel,  it  will  be  error 
for  which  the  judgment  will  be  reversed  ;  and  the  reviewing 
court  will  not  inquire  whether  the  communication  Avas,  in 
fact,  erroneous  or  prejudicial  to  the  party  complaining.* 
In  a  civil  case,  the  jury  required  further  instructio'ns,  and 

1  Dent  V.  King,  1  Ga.  200,  204.  To  the  same  effect,  Gao;e  v.  Wilson. 
17  Me.  378.     Compare  State  v.  Garrand,  5  Greg.  216. 

2  Spencer  v.  Trafford,  42  Md.  1,  21. 

3  Rogers  v.  Moulthrop,  13  Wend.  274. 

*  Sargent  v.  Eoberts,  1  Piclv.  337;  Read  v.  Cambridge,  124  Mass.  567; 
State  V.  Patterson,  45  Vt.  308;  Plunkett  v.  Appleton,  9  Jones  &  Sp.  159; 
s.  c,  51  How.  Pr.  469. 


426  IMPROPER  COMMUNICATIONS.  [ciI.   XVII. 

the  ju(l<re,  after  callinu'  u[)()ii  the  counsel  for  the  defendant 
to  go  with  him,  who  refused,  and  after  seeking  the  defend- 
ant himself,  who  could  not  l>e  found,  went  into  the  jury- 
room  and  gave  them  the  instruction  which  they  rc((uired. 
It  was  held  no  error;  though  it  wouhl  have  been  otherwise 
if  he  had  gone  tiiere  to  hold  a  private  conversation  with 
them.^  In  the  United  States  Circuit  Court  sitting  in  Khode 
Jslaiul,  it  was  stated  by  Mr.  Justice  Curtis,  that  "  it  is  in 
accordance  with  the  practice  of  this  court,  when  a  jury 
address  a  written  incjuiry  to  the  court,  while  not  in  session, 
to  summon  the  counsel,  and  make  known  to  them  the  in- 
(juiry,  and  then  proceed  to  answer  it  in  writing,  if  the  court 
thinks  it  safe  and  pro[)cr  to  do  so."- 

§  358.  Kule  applicable  to  Sheriff's  Jury.  —  This  has 
been  applied  to  instructions  given  to  a  sheriff's  jury  as- 
sembled under  statutes  of  Massachusetts  to  assess  damages 
for  land  taken  for  public  use.  If  the  sheriff  instruct  the 
jury  on  a  question  of  law,  in  their  room,  in  the  absence  of 
the  parties  and  their  counsel,  and  without  their  consent,  it 
will  be  ground  for  setting  aside  the  verdict,  without  refer- 
ence to  the  propriety  of  the  instructions  themselves.'^ 

1  Cook  V.  Green,  G  N.  J.  L.  109. 

2  Norris  v.  Cook,  1  Curt.  C.  C  464. 

3  Read  v.  Cambridge,  124  Mass.  567,  570.  In  tliis  case  Gray,  C.  J., 
said:  "The  duty  of  the  sheriff  or  other  olhcer  presiding  at  atrial  by 
a  sheriffs  jury  is  prescribed  by  statute  to  be  to  keep  order,  to  admin- 
ister the  oath  to  jurors  and  witnesses,  to  decide  all  questions  of  law 
arising  at  the  trial  and  direct  the  jury  upon  any  question  of  law, 
when  requested  by  either  party,  and,  when  requested,  to  certify  to  the 
court,  with  the  verdict,  the  substance  of  any  decision  or  direction  by 
him  given.  Gen.  Stats.,  c.  43,  §§  32,  33;  Merrill  v.  Berkshire,  11  Pick. 
269,  274;  Tucker  v.  Mass.  Central  Railroad,  110  Mass.  124.  In  perform- 
ing these  duties  his  functions  are  judicial;  in  attending  the  jury  after 
they  havt;  retired  to  deliberate  upon  their  verdict,  he  acts  as  an  execu- 
tive officer,  just  as  his  deputy  miglit.  Tripp-  v.  County  Commis- 
sioners, 2  Allen,  556-558;  Briggs  v.  Taunton.  110  Mass.  423-427.  The 
sheriff  does  not  hold  a  court,  except  for  the  purpose  of  presiding  at  a 
particular  time  under  the  warrant  to  him  from  the  countj^  commission- 
ers. Gen.  Stats,  c.  43,  §  27.  If  he  has  any  authority  to  direct  the  jury 
in  matter  of  law,  after  he  has  once  committed  ttie  case  to  them,  it  can 
only  be  :n  the  presence  of  the  counsel.  The  statute  which  requires  him 
to  give  directions  to  the  jurj-,  and  to  certify  them  to  the  court,  at  the 


§   359.]  AVHAT  IF  BOTH  PARTIES  CONSENT.  427 

§  359.  AVliat  if  both  Parties  consent. —  In  Burrows  v. 
Unwin,^  the  jury,  after  they  had  retired,  sent  in  a  message 
desiring  to  have  a  certain  hiw  book  sent  to  them  from  the 
library  of  the  court.  Lord  Tenterden,  C.  J.,  asked  the 
counsel  on  both  sides  if  they  objected,  and  both  answered 
that  they  did  not.  But  nevertheless  the  request  was  re- 
fused, the  learned  judge  observing:  "The  regular  way  is 
for  the  jury  to  come  into  court  and  state  their  question  and 
receive  the  law  from  the  court ;  and  for  the  sake  of  pre- 
cedent that  course  should  be  adopted  now."  The  rule 
thus  made  has  been  so  far  relaxed  by  our  courts  that  written 
instructions  may  be  sent  to  the  juiy  in  their  room,  at  their 
request,  if  both  parties  consent.  But  as  the  rule  is  one 
founded  in  public  policy,  it  will  not  be  relaxed  by  anything 
short  of  an  express  consent ;  a  mere  passive  acquiescence 
will  not  do.  The  mere  act  of  counsel  in  sitting  still  and 
observing  the  judge  in  the  act  of  writing  a  reply  to  a  writ- 
ten communication  which  the  jury  have  made  to  him,  will 
not  be  sufficient.^  So  it  has  been  held  error  for  a  justice 
of  the  peace  to  go  into  the  jury  room  and  give  the  jury 
additional  instructions  without  the  express  consent  of  the 
parties.  The  mere  fact  that  they  know  that  he  is  going  to 
do  it,  and  do  not  object,  is  not  sufficient.^ 

request  of  either  party,  implies  tliat  the  parties  must  be  present,  by 
themselves  or  their  counsel,  when  the  directions  are  given.  No  reason 
has  been  or  can  be  suggested  why  an  executive  officer,  exercising  judicial 
functions  in  a  particular  case,  should  not  be  subject  to  the  same  re- 
strictions as  the  judges  of  the  courts.  The  question  of  the  foreman 
was  evidently  addressed  to  the  sheriff  and  answered  by  liim  in  his  judi- 
cial capacity.  As  he  had  no  right,  under  the  circumstances,  to  make 
any  communication  at  all  to  the  jury,  the  decisions  already  cited  are 
conclusive  to  tlie  point  that  the  court  will  not  inquire  whether  the  com- 
munication was  in  fact  erroneous  or  prejudicial.  The  statement,  in  his 
certificate,  that  the  counsel  of  both  parties,  after  the  jury  had  l3een  dis- 
missed, assented  to  its  correctness,  is  wholly  immaterial,  because  it  was 
no  part  of  his  duty  at  that  stage  of  the  case  to  inquire  into  or  to  certify 
their  opinion  to  that  point." 

1  3  Car.  &  P.  310. 

^  Plunkett  V.  Appleton,  9  Jones  &  Sp.  159. 

5  Moody  V.  Pomeroy,  4  Denio,  115;  Taylor  v.  Betsford,  13  Johns.  487; 
Bunn  v.  Croul,  10  Johns.  238;  Wateitown  Bank  v.  Mix,  51  N.  Y.  558. 


428  IMPROPER  COMMUNICATIONS.  [cil.  XVII. 

§  3()0.   Tlu'   Kijilit  to   a  Xew  Trial    on  this    Oroiind    is 

substantial  and  not  a  matter  of  discretion,  since  it  relates 
to  the  substance  of  the  jury  trial.  This  mode  of  contesta- 
tion is  a  public  proceeding,  as  well  in  respect  to  the  pro- 
ihic'tiou  of  proof  as  to  the  instruction  of  the  jury  by  the 
judge.  The  party  has  a  right  to  1)0  heard  in  respect  to 
everything  transacted,  and  to  bring  in  review  all  the  pro- 
ceedings at  the  trial. ^ 

§  361.  Coiumunications  between  the  Jury  and  the 
Clerk. —  Keeping  in  mind  the  paramount  rule  that  courts 
will  not,  in  civil  cases,  visit  upon  an  unoffending  party  to 
the  suit  the  consequences  of  an  irregularity  of  the  jury, 
where  it  has  Avrought  no  injury  to  the  other  party,  we  find 
that  it  has  been  decided  that  the  mere  fact  that  the  jury, 
after  having  settled  in  their  minds  the  rights  of  the  parties, 
and,  being  uncertain  how  to  compute  the  damages,  call  in 
the  clerk  of  the  court  to  make  the  computation  for  them, 
who  makes  it  correctly,  and  tliey  return  their  verdict  in  ac- 
cordance therewith,  is  not  a  ground  for  a  new  trial.-  Much 
less  will  a  request  by  a  juror  to  the  clerk  in  open  court  in 
the  presence  of  the  counsel,  for  information,  and  an  answer 
made  by  the  clerk  from  the  record,  not  objected  to  at  the 
time,  afford  ground  for  setting  aside  the  verdict.'* 

§  362.  Between  the  Jurors  and  tlie  Officer  havings  them 
ill  charge. —  (1.)  General  Rule. —  Whether  communica- 
tions between  members  of  the  jury  and  the  officer  having 
them  in  charge  will  avoid  the  verdict,  will  depend  upon  the 
nature  of  the  communications.  AVhere  they  are  such  that 
it  is  obvious  that  no  prejudice  could  have  resulted  from 
them,  they  will  not  afford  ground  for  a  new  trial ;  *  but  if  the 
communications  were  such  that  prejudice  may  have  resulted, 
the  rule  is  different.^     A  conversation  not  relating  to  a  mat- 

'  Wutertowii  Bank  v.  Mix,  51  N.  Y.  558. 

-  Dennisou  v.  Powers,  35  Vt.  39. 

■■  Allen  V.  Blunt.  1  Woodb.  &  M.  121.  147. 

••State  V.  AVart,  51  Iowa,  587;  State  v.  Stark,  72  Mo.  37,40;  Taylor 
V.  Everett,  2  How.  Pr.  23.     Compare  Cole  v.  Swan,  4  G.  Greene,  32. 

•"'  State  V.  Lantz,  23  Kan.  728;  State  v.  Brown,  22  Kan.  222;  Dansby  v. 
State,  34  Tex.  392.  Contra.,  Baker  v.  Simmons,  29  Barb.  198,  a  case 
V  iiich  cannot  be  supported. 


§   362.]     BETWEEN  JURORS  AND  OFFICER  IN  CHARGE.  421> 

ter  connected  with  the  trial  will  obviously  afford  no  ground 
for  setting  aside  a  verdict.^  It  would  seem  to  follow  that 
the  mere  fact  that  the  bailiff  who  had  charge  of  the  jury 
was  present  with  them  in  their  room  during  their  delibera- 
tions, is  not  a  good  ground  for  a  new  trial,  unless  his  pres- 
ence was  attended  with  circumstances  which  cast  suspicion 
on  the  fairness  of  the  verdict.^  In  Louisiana  it  is  held  that 
the  presence  of  the  sheriff  and  his  deputies  in  the  jury 
room  or  at  their  meals  is  not  misconduct,  and  no  ground 
for  a  new  trial. ^  Some  courts,  however,  in  late  cases,  hold 
that  the  mere  presence  of  the  bailiff  in  the  jury  room 
during  their  deliberations,  is  sufficient  ground  for  a  new 
trial,  although  no  communication  passed  between  him  and 
them.  The  reason  on  which  these  courts  proceed  is,  that 
his  presence  is  an  intrusion  upon  their  privacy  and  confi- 
dence, a  restraint  upon  their  freedom  of  discussion,  and  a 
circumstance  which  tends  to  defeat  the  purpose  for  which 
they  are  sent  out.  This  view  is  taken  by  the  Supreme 
Court  of  Michigan  in  an  ably  reasoned  opinion  by  (/OOLEY, 
J.,**  and  is  concurred  in  by  the  Supreme  Court  of  Indiana.*^ 
In  Kansas^  and  in  Illinois^  it  is  held  that  the  unexplained 
presence  of  the  bailiff  in  the  jury  room  during  their  de- 
liberations, will  have  the  same  effect,  if  the  bailiff  was  an 
important  witness  in  the  case,  though,  in  the  view  of  the 
Illinois  court,  it  will  be  otherwise  if  he  was  a  witness 
merely  upon  a  collateral  point  not  likely  to  provoke  discus- 
sion among  the  jurors.® 

(^2.)  Illustrations — Verdict  left  to  stand. —  Where  one 
of  the  jurors  asked  the  officer  how  long  the  court  would 
keep  them  together,  and  he  replied  that  he   did  not  know 

1  Daniel  v.  Frost,  62  Ga.  697;  State  v.  Summers,  4  La.  An.  26. 

2  Slaughter  v.  State,  24  Tex.  410;  Martin  v.  State,  9  Tex.  App.  293; 
Gainey  v.  People,  97  111.  270. 

3  State  V.  Summers,  4  La.  An.  27;  State  v.  Caulfield,  23  La.  An.  148. 
^  People  V.  Knapp,  42  Mich.  267. 

5  Rickard  v.  State,  74  lud.  275;  McClary  v.  State,  75  Ind.  260. 

6  State  V.  Snyder,  20  Kan.  306. 
"  Gainey  v.  People,  97  111.  270. 

s  Gainey  v.  People,  supra.    See  State  v.  Hopper,  71  Mo.  425. 


430  IMPROPER  COMMUNICATIONS.  [CH.  XVII. 

I>ut  they  woukl  huvc  to  stay  till  Saturday  night,  this  was 
held  no  jrround  for  a  new  trial,  thou<rh  censurable  on  the 
l^art  of  the  officer.^  So  where  tlie  otHccr  in  charge  of  the 
jury  in  a  case  of  felony  told  them  "that  unless  they  de- 
cided the  case  one  way  or  the  other,  they  shouKl  have  noth- 
ing more  to  eat,  and  no  water  to  drink,"  and  some  of  the 
jurors  understood  his  statement  to  emanate  from  the  court, 
it  was  held  no  ground  for  a  new  trial.  Such  a  statement 
might  have  a  tendency  to  accelerate  the  verdict,  but  it 
would  work  in  favor  of  the  accused  rather  than  against 
him.-  So,  where  in  a  civil  case  tried  before  six  jurors  in  a 
justice's  court,  the  constable  came  into  the  jury-room,  after 
five  of  the  jurors  had  made  up  their  minds  to  tind  as  they 
did,  and  wrote  on  a  slip  of  paper  that  it  ivas  a  clear  case, 
without  expressing  on  which  side  it  was  clear,  and  the  affi- 
davit of  the  remaining  juror,  wdio  afterwards  agreed  with 
the  five,  showed  that  he  w-as  not  influenced  by  it,  a  new 
trial  was  refused.^ 

(3.)  Continued —  Verdict  set  aside. —  But  where,  after 
the  jury  in  a  civil  case  had  deliberated  several  hours  without 
beinir  able  to  agree,  the  officer  told  them  that  unless  they 
-should  speedily  agree,  they  Avould  be  taken  to  another 
county,  and  that  the  judge  was  making  preparations  for 
that  purpose,  a  new  trial  was  granted,  though  the  represen- 
tations were  untrue.*  Where,  in  a  trial  for  murder,  after  the 
jury  had  retired, one  of  the  officers  having  them  in  charge,  said 
in  their  hearing  that  "it  was  a  worse  case  than  D.'s,"  and 
another  officer  said  that  "  public  opinion  was  against  the 
accused,"  it  was  held  that  a  new  trial  should  have  been 
^j-ranted.*     So,  where  in  a  civil  case,  the  officer  in  charge  of 

1  Leach  v.  Wilbur,  9  Allen,  212. 

2  Pope  V.  State,  3G  Miss.  121,  134. 
■'Price  V.  Lambert,  3  N.  J.  L.  401. 

4  Gholstonv.  Gholston,  31  Ga.  625,  639.  The  court  iuthis  case  took  thi^ 
extreme  view  that  amj  unauthorized  communication  with  a  jury,  althougli 
the  nature  of  it  is  unknown,  will  vitiate  a  verdict;  that  a  verdict  will 
not  be  permitted  to  stand,  unless  the  jurj-,  during  their  deliberations, 
were  kept  absolutely  isolated  from  the  rest  of  the  world.  This,  as  is  well 
known,  and  fully  shown  elsewhere,  is  not  the  law.    Ante,  §  313. 

i  Nelms  V.  State,  13  Smed.  &  M.  500,  508. 


§   362.]     BETWEEN  JUROKS  AND  OFFICER  IN  CHARGE.  431 

the  jury  informed  them  that  unless  they  agreed  on  a  verdict 
they  would  be  kept  from  Saturday  till  Monday  evening 
without  anj^hing  to  eat,  whereby  one  of  the  jurors  was 
induced  to  consent  that  a  verdict  might  be  returned,  a  new 
trial  was  granted,  the  court  saying  that  in  case  of  any  con- 
versation between  the  officer  and  the  jury,  the  verdict  ought 
to  be  set  aside  the  moment  the  fact  comes  to  the  knowl- 
edge of  the  court. ^  So,  where  the  Ijailiff  entered  the  jury- 
room  during  their  deliberations,  and  argued  that  they  ought 
to  send  the  prisoner  to  the  penitentiary,  the  verdict  was  set 
aside  ;  ^  and  the  same  conclusion  was  reached  where  the 
bailiff  came  into  the  jury-room,  and,  at  the  request  of  the 
jury,  read  correctly  a  portion  of  the  court's  instructions, 
which,  owing  to  the  badness  of  the  judge's  handwriting,  the 
jurors  could  not  make  out.'^ 

(4.)  Evidence  of  the  Officer's  Misconduct. —  The  diffi- 
culty in  these  cases  is  one  of  proof  ;  for  it  has  been  held  that 
affidavits  of  jurors  will  not  be  heard  to  show  that  the  officer 
held  improper  communications  with  the  jury.*  In  Mississippi, 
however,  it  is  held  that  the  affidavits  of  jurors  are  admis- 
sible to  show  the  misconduct  of  the  officer  in  such  cases, 
t.hough  not  to  show  their  own  misconduct ;  '"  and  in  Iowa, 
such  affidavits  are  received  under  the  statute  which  makes 
the  affidavits  of  jurors  admissible  in  support  of  a  motion  for 
a  new  trial.''  It  has  been  held  that  affidavits  of  jurors, 
though  admissible  to  show  the  fact  of  the  improper  commu- 
nication having  been  made,  will  not  be  listened  to  as  to  the 
effect  it  had  on  the  minds  of  themselves  or  their  fellows.^ 
Unless,  therefore,  the  communication  had  a  manifest  ten- 
dency to  influence  the  jury  improperly  against  the  unsuc- 
cessful party,  it  will  afford  no  ground  for  a  new  trial. ^ 

^  Cole  V.  Swiui,  4  G.  Greene,  32. 
2  Dansby  v.  State,  34  Tex.  392. 
"  State  V.  Brown,  22  Kan.  222. 

4  Reins  v.  People,  30  111.  25G;    Wilson  v.  People,  4  Park.  Cr.  R.  619^ 
632. 

5  Xelmsv.  State,  13  Smed.  &  M.  500,  508. 
^  Cole  V.  Swan,  4  G.  Greene,  32. 

^  Taylor  v.  Everett,  2  How.  Pr.  23;  Thomas  v.  Cliapnian,  45  Barb.  OS. 
**  Thomas  v.  Chapman,  sxqrra. 


432  IMPROPER  COMMUNICATIONS.  [CII.  XVII. 

(5.)  Conflict  of  decisions  in  New  York. —  In  New  York 
it  seems  to  be  settled  that  cominunieations  l)etween  tlie  jmy 
iiiid  the  officer  attending  them,  however  prejudicial  to  the 
accused  in  a  criminal  case,  form  no  around  for  a  new  trial. ^ 
The  rule  has  been  applied  in  a  caj)ital  case,  and  did  not 
yield,  althouirh  a  juror  swore  that  he  should  not  have  voted 
to  convict  the  prisoner  but  for  what  the  constable  commu- 
nicated to  them.-  In  a  more  recent  civil  case  at  special 
term  it  was  held  that  such  communications  do  furnish 
ground  for  a  new  trial,  Avhere  they  are  of  such  a  nature  as 
to  create  a  suspicion  that  the  verdict  was  thereby  improp- 
erly influenced  ;  and  that  the  affidavits  of  jurors  would  ])e 
admitted  to  show  the  fact  of  such  a  communication,  but  not 
to  show  its  effect  on  the  minds  of  the  jury.^  The  same 
view  was  taken  by  HaPvRis,  J.,  in  a  capital  case.  He  held 
that  such  an  irregularity  was  sufficient  to  vitiate  a  verdict  of 
guilty,  unless  it  appeared  beyond  all  reasonable  doubt  that 
no  injury  had  resulted  from  it  to  the  defendant ;  and  he  found 
that  no  such  injury  had  resulted,  and  refused  to  grant  a  new 
trial.*  This  is  much  the  more  sensible  view.  Obviously 
there  is  no  just  distinction  between  an  improper  communi- 
cation made  to  the  jury  by  the  officer  in  charge  of  them, 
and  one  made  to  them  by  any  other  stranger  to  the  cause 
on  trial.  We  have  seen  that  communications  touchiuii;  the 
merits  of  the  controversy,  made  to  the  jury  by  the  judge 
without  the  knowledge  or  consent  of  the  losing  party,  afford 
ground  for  a  new  trial .^  Improper  communications  made 
by  the  officer  having  them  in  charge,  who  has  special  oppor- 
tunities to  tamper  with  them,  ought  not  to  stand  on  any 
higher  footing. 

§  363.  Cominunieations  between  the  Jurors  Tlieni- 
selves. —  The  fact  that  [a  juror  makes  statements  to  his  fel- 
lows prejudicial  to  the  accused,  in  a  criminal  case,  or  to  the 

1  Baker  v.  Simmons,  29  Barb.  198;   Taylor  v.  Everett,  2  How.  Tr.  2:?. 

2  People  V.  Carnal,  1  Park.  Cr.  R.  256. 

2  Thomas  v.  Chapman,  45  Barb.  98,  per  Siithcrlaiul,  J. 
*  People  V.  Hartung,  4  Park.  Cr.  R.  256,  314. 
»  Ante,  §  355. 


§   363.]  BETWEEN  THE  JURORS  THEMSELVES.  433 

unsuccessful  party  in  a  civil  case  may,  it  has  been  held,  l)e 
ground  for  a  new  trial  ,^  if  the  fact  is  brought  to  the  atten- 
tion of  the  court  other  than  by  the  affidavits  or  declarations 
of  the  jurors  themselves  ;  "^  though,  as  we  shall  presently 
see,  the  weight  of  opinion  is  perhaps  the  other  way.  In 
Iowa,  where  affidavits  of  jurors  are  heard  to  show  miscon- 
duct in  the  jury  room,  the  court  has  refused  to  grant  a  new 
trial  on  account  of  such  statements,  unless  they  were  clearly 
prejudicial  to  the  accused.  The  court  do  not  regard 
such  statements  as  prejudicial  in  the  same  degree  as 
where  incompetent  depositions  are  delivered  to  the  jury.' 
"  Courts  should  distinctly  charge  juries  in  criminal  cases 
that  they  must  look  alone  to  the  testimony  adduced  in  the 
evidence  before  them  on  the  trial,  and  should  not  permit  one 
of  their  number  to  communicate  to  them  any  fact  in  his 
knowledge  not  deposed  to  in  court."  *  But  a  failure  of  the 
court  to  admonish  the  jury,  on  adjourning  in  a  capital  case, 
not  to  speak  together,  with  reference  to  the  case,  has  been 
held  no  ground  for  a  new  trial.  A  statute  requiring  the 
court  so  to  admonish  the  jury  is  deemed  directory  and  cau 
tionary  only,  and  not  mandatory.^ 

The  courts  are  not,  however,  unanimous  in  holding  that 
such  communications  will  be  ground  for  a  new  trial.  In 
the  opinion  of  the  Supreme  Court  of  Mississippi,  it  would 
be  erectinoj  too  hlo-h  a  standard  and  would  result  in  a  de- 
feat  of  justice,  to  set  aside  verdicts  because  jurors  will 
make  such  statements  to  their  fellows.  Thus,  in  a  case 
where  the  defendant,  a  negro,  had  been  convicted  of  big- 
amy, it  was  made  a  ground  for  a  motion  for  a  new  trial 
that  one  of  the  jurors,  who  had  been  the  former  master  of 

1  Simpsou  V.  Kent,  9  Phila.  30;    Dan  a  ace  v,  Preston,  18  Iowa,  396; 
Booby  V.  State,  4  Yerg.  Ill ;  post,  §  3G5,  subsec.  4. 

A  statement  of  this  kind  will  not,  of  course,  be  ground  for  a  new  trial,  if 
it  is  shown  to  have  been  made  after  the  verdict  was  agreed  upon.  Wise 
V.  Bosle3^  32  Iowa,  34.     See  also  Cherry  v.  Sweeny,  1  Crancli  C.  C.  530. 

2  Nolen  V.  State,  2  Head,  520. 

'  State  V.  Woodson,  41  Iowa,  425. 

^  Morton  v.  State,  1  I;ea  (Tenn.),  498. 

«  Thompson  v.  State,  26  Ark.  323. 

(28) 


434  IMPROPER  COMMUNICATIONS.  [CH.  XVII. 

the  clofnidant,  stated  in  the  jury-room  tluit  he  knew  that 
the  defendant  had  at  least  three  wives.  This  was  made  to 
a})pear  by  the  afKdavit  of  a  person  to  whom  this  juror  told 
it  after  the  conviction,  the  juror  having  stated  to  him  at 
the  same  time,  that  this  statement  by  him  to  his  fellows 
had  produced  the  conviction.  The  court  refused  a  new 
trial  on  this  ground.^ 

The  Supreme  Court  of  Texas  has  taken  the  same  view  of 
the  question  ;  but  their  decision  rests  upon  the  construction 
of  a  statute,  which  provides  as  follo^vs  :  "  New  trials,  in 
cases  of  felony,  shall  be  granted  for  the  following  causes, 
and  for  no  other:  *  *  *  7  "Where  the  jury,  after 
having  retired  to  deliberate  upon  a  case,  have  received  other 
testimony  ;  or  where  a  juror  has  conversed  with  any  person 
in  regard  to  the  case  ;  *  *  *  8.  Where,  from  the  mis- 
conduct of  the  jury,  the  court  is  of  opinion  that  the  defend- 
ant has  not  received  a  fair  and  impartial  trial ;  and  it  shall 
be  competent  to  prove  such  misconduct  by  the  voluntary 
affidavit  of  a  juror ;  and  a  verdict  may,  in  like  manner,  in 
such  cases,  be  sustained  by  such  affidavit."  '^  "  These  provi- 
sions," say  the  court,  "were  intended  to  secure  to  the 
accused  an  open  public  trial  l)efore  a  jury,  where  he  could 
be  heard  by  himself  and  counsel,  and  be  confronted  with 
the  witnesses  against  him  ;  but  it  cannot  be  supposed  that 
the  deliberations  of  the  jurors  among  themselves,  after 
the}'' retire  to  consider  of  their  verdict,  should  be  cause  for  a 
new  trial."  Where,  therefore,  after  a  jury  had  retired  to 
consider  of  their  verdict,  in  a  trial  for  murder,  one  juror 
told  another  that  the  defendant  had  killed  one  or  two  other 
men,  and  the  juror  thus  spoken  to  was  thereby  prejudiced 
against  the  defendant,  and  induced  to  fix  his  punishment  in 
the  penitentiary  at  a  greater  number  of  years  than  he 
otherwise  would  have  done,  —  it  was  held  that  there  was 
no  ground  for  a  new  trial.  The  court  said  :  "  The  state- 
ment of  the  juror,  as  found  in  his  affidavit,  is  not  made  ])y 
the  statute  a  ground  for  a  new  trial  ;  and  it  is  only  for  such 

1  Taylor  v.  State,  52  Miss.  85. 

2  Pasc.  Dig.,  Art.  3137;  Tex.  Code  Cr.  Proc.  1879,  Art.  777. 


§   363.]  BETWEEN  THE  JUROKS  THEMSELVES.  435 

causes  as  the  statute  prescril)es  that  another  trial  will  be 
awarded.  Where  misconduct  of  the  jury  is  cause  for  a 
new  trial,  it  is  only  so  conditionally.  It  must  be  shown 
that  the  defendant  has  not  received  a  fair  and  imi)artial 
trial,  by  reason  of  such  misconduct,  and  the  discretion  of 
the  court  must  be  exercised  upon  the  facts  in  granting  or 
refusino*  the  motion  on  that  ground.  The  affidavit  is 
■clearly  insufficient  and  without  merit  as  cause  for  a  new 
trial."! 

In  an  early  case  in  Tennessee,  a  new  trial  was  granted 
where  one  of  the  jury  made  affidavit  that  he  founded  his 
verdict  upon  the  statement  of  one  of  the  jurors,  made  after 
the  jury  had  retired  from  the  bar,  without  which  he  would 
not  have  agreed  to  find  the  prisoner  guilty.^  But  in  a  later 
case  a  person  convicted  of  murder  in  the  second  degree, 
made  affidavit  that  after  the  jury  had  retired  from  the  bar 
to  consider  of  their  verdict,  one  of  them  made  a  statement, 
as  of  his  own  knowledge,  to  his  fellow  jurors,  to  the  effect 
that  the  prisoner  was  a  violent  and  dangerous  man,  that  he  had 
stabbed  other  persons,  and  should  not  be  turned  loose  upon 
the  community  ;  and  upon  this  unsupported  affidavit,  made 
an  application  to  the  court  to  award  compulsory  process,  to 
bring  before  the  court  certain  of  the  jurors  to  testify  as  to 
the  matter  alleged  in  the  affidavit  —  they  refusing,  as  was 
stated,  to  appear  voluntarily.  The  court  refused  this  ap- 
plication. In  this,  it  was  held,  there  was  no  error.  The 
court  said  :  "  What  might  have  been  the  effect  of  the  state- 
ment alleged  to  have  been  made  by  the  juror,  if  the  fact 
bad  been  established,  we  need  not  now  declare.  It  is  suf- 
ficient to  say  that  the  jurors  are  not  subject  to  be  called 
upon  to  convict  themselves  of  a  palpable  violation  of  duty ; 
for  which,  if  guilty,  they  were  liable  to  be  punished  by  the 
court."  ^ 

^  Austin  V.  State,  42  Tex.  355. 

2  Booby  V.  State,  4  Yerg.  111.  This  was  under  an  exceptional  rule 
which  obtains  in  Tennessee,  by  which  the  affidavits  of  jurors  are  re- 
ceived to  impeach  their  verdict. 

3  JNolen  V.  State,  2  Head,  520,  522. 


436  IMI'ROrER  COMMUNICATIONS.  [CH.   XVII. 

§  364.  Tainporinj;-  Avitli  Juries. —  (1.)  Emhraccry  at 
Common  Law. —  One  who  :iltenii)ts  by  improper  means  to 
influence  the  verdict  of  a  jury,  incurs  a  three-fold  liability. 
He  is  liable  to  be  punished  hy  the  court  for  contempt  in  in- 
terfering with  its  process  ;  he  is  indictable  at  common  law 
for  the  offense  of  embracery  ;  and  he  is  lial)le  in  a  civil 
action  to  one  who  has  suffered  damage  thereby.  The 
offense  of  embracery  is  catalogued  by  the  old  writers  as  a 
species  of  maintenance.  "The  third,"  says  Lord  Coke, 
after  referring  to  two  other  kinds  of  maintenance,  "is 
when  one  laboureth  with  the  jury,  if  it  be  but  to  appeare,  or 
if  he  instruct  them,  or  put  them  in  feare,  or  the  like,. 
he  is  a  maintainer,  and  he  is  in  law  called  an  embraceor, 
and  an  action  of  maintenance  lyeth  against  him.  And 
whether  the  jury  passe  for  his  side  or  no,  or  whether  the 
jury  give  any  verdict  at  all,  yet  shall  he  be  punished  as  a 
maintainer  or  embraceor,  either  at  the  suit  of  the  king" 
or  partie."^  Definitions  are  also  given  by  Hawkins,^  by 
Blackstone,^  and  by  Bishop  ;  ^  but  the  substance  of  them  is 
the  same,  —  that  embracery  consists  in  a  corrupt  attempt 
to  influence  the  verdict  of  a  jury  1)y  other  means  than  evi- 
dence and  argument  in  open  court ;  and  Hawkins  agrees 
with  Blackstone  that  it  is  not  only  punishable  by  indict- 
ment, but  that  it  is  also  the  subject  of  a  civil  action. 

(2.)  Difficulties  of  ynaintaining  Civil  Actions  for. — 
No  case  can  probably  be  found  where  tampering  with  mem- 

1  Co.  Litt.  369.  a. 

2 1  Hawk.  Pleas  of  the  Crown,  (Curwood's  Ed.),  p.  46G,  §  1. 

3  4  Bla.  Com.  140. 

••  2  Bish.  Cr.  L.,  §  384.  We  have  discovered  but  one  case  in  the  Amer- 
ican books  where  this  offense  was  punished  by  indictment,  thougli  there 
are  possibly  others.  This  was  the  case  of  the  Commonwealth  v.  Kauff- 
mann,  in  the  (Quarter  Sessions  of  Berks  County,  Pennsylvania.  (1  Phila. 
534).  It  appeared  tliat  during  a  recess  of  the  court,  pending  the  trial 
of  a  civil  action,  the  accused,  who  was  a  son-in-law  of  the  plaintiff,  ap- 
proached two  of  the  jurors  and  made  a  remark  in  their  hearing  of  a 
tendency  to  influence  their  verdict  in  favor  of  the  plaintiff.  For  this  he 
was  indicted  for  the  common-law  misdemeanor  of  embracery,  and  the 
juiy,  after  listening  to  a  lucid  charge  of  the  court  (Jones.  J.),  returned 
a  verdict  of  guilty.  See  in  this  connection.  State  v.  Sales,  2  Nev.  268;. 
Gibbs  V.  Dewey,  5  Cow.  503 ;  Graunis  v.  Brandon,  5  Day,  260,  273. 


§   304,]  TAMPERING  WITH  JURIES.  437 

bei's  of  a  jury  has  been  made  the  subject  of  a  civil  action. 
Very  great  difficulties  would  seem  to  lie  in  the  way  of 
maintaining  a  civil  action  for  this  cause.  How  could  the 
plaintiff  succeed  in  making  it  appear  that  a  verdict  would 
have  been  rendered  in  his  favor  but  for  the  tampering? 
How  could  he  show  the  amount  of  damages  which  would  oth- 
erwise have  been  given?  If  he  should  succeed  in  overcoming 
these  difficulties,  it  would  still  be  necessary  to  show  that  he 
did  not  discover  the  fact  that  the  jury  had  been  tampered 
with  in  time  to  make  it  the  ground  of  a  motion  for  a  new 
trial.  The  reason  why  the  books  do  not  disclose  instances 
of  civil  actions  of  this  nature,  will  probably  be  found  in 
the  fact  that  courts  of  chancery  have  freely  exercised  their 
power  to  set  aside  judgments  founded  upon  verdicts  ob- 
tained by  fraud. 

(3.)  How  Punished  under  Statutes. —  It  is  abiiost  un- 
necessary to  observe  that  the  acceptance  of  a  gratuity  by  a 
juror,  designed  corruptly  to  influence  him  in  the  discharge 
of  his  duty,  justly  renders  him  and  the  embraceor  liable  to 
severe  penalties.  This  is  usually  line  or  imprisonment 
in  the  penitentiary,  or  both.  In  addition  to  the  punish- 
ment prescribed  by  law,  the  offending  juror  is  in  some 
States  liable  to  forfeit  "  ten  times  the  sum,  or  ten  times  the 
value  of  that  which  he  took  or  received,  to  the  party  to  the 
action  or  special  proceeding,  aggrieved  thereby  :  and  is  also 
liable  to  that  party  for  his  damages  sustained  thereby."  ^ 

(i.)  Subjects  Juror  to  Punishment /or  Contempt. —  A 
juror  who  corruptly  confers  with  a  party  to  the  suit,  or 
who  suffers  a  party  to  make  corrupt  communications  to 
him,  is,  no  doubt,  punishable  for  a  contempt  of  court. 
This  is  so  under  the  Federal  statute  relating  to  the  power 
of  the  courts  of  the  United  States  to  punish  for  contempt,^ 
which  limits  this  power  to  cases  of  misbehavior  of  any  person 
in  the  presence  of  the  court,  or  so  near  thereto  as  to  obstruct 
the  administration  of  justice,  or  to  cases  of  "  disobedience  or 

1  N.  Y.  Code  Rem.  Jus.  §  1193;  Coinp.  L.  Mich.  1871,  §  6029;  G.  S, 
Ky.  1879,  p.  572,  §  10. 
2  Rev.  Stat.  U.  S.  §  725. 


438  IMPROPER  COMMUNICATIONS.  [CII.  XVII. 

resistance  of  any  officer,  party,  juror,  witness  or  other  per- 
son to  any  lawful  writ,  process,  order,  rule,  decree  or  com- 
mand of  the  court."  The  statute  does  not  define  how  near 
the  court  the  misbehavior  must  be,  but  it  has  been  held  to 
extend  to  any  misbehavior  by  a  juror  in  his  capacity  as 
such,  wherever  committed  ;  since  such  misbehavior  necessa- 
rily tends  to  obstruct  the  administration  of  justice.^ 

(5.)  Always  ground  for  a  New  Trial. —  The  cases  of 
tampering  with  juries,  which  are  to  be  met  with  in  the 
books,  are  generally  cases  where  this  offense  has  been  made 
the  ground  of  a  motion  for  a  new  trial ;  and  here  the  rule 
is  that  the  slighest  tampering  with  the  jury  during  the  trial,^ 
or  prior  to  it,  by  a  party  or  the  agent  or  attorney  of  a 
party,  in  whose  favor  the  verdict  has  been  rendered,  is,  on 
grounds  of  public  policy,  good  cause  for  setting  aside  the 
verdict,  without  reference  to  the  merits  of  the  case,  and 
without  considering  whether  the  attempt  to  poison  the 
sources  of  justice  was,  or  was  not,  successful.^  "The 
law,"  says  Hawkins,  "so  abhors  all  corruption  of  this 
kind,  that  it  prohibits  everything  which  has  the  least  ten- 
dency to  it,  what  specious  pretense  soever  it  may  be  cov- 
ered with,  and  therefore  it  will  not  suffer  a  mere  stranger 
so  much  as  to  labour  a  juror  to  appear  and  act  according 
to  his  conscience."^  Although  a  distinguished  modern- 
writer  has  disapproved  this  extreme  view,*  yet  the  courts 
in  the  most  recent  cases  have  been  scarcely  less  rigid  in  set- 
ting aside  verdicts  as  punishments  for  attempts  of  this  kind.^ 
All  the  cases  agree  that  if  a  party,  or  his  counsel,  or  any 

1  Be  May,  1  Fed.  Rep.  737,  742.  See,  as  to  liability  of  jurors  for 
contempt,  United  States  v.  Devaughau,  3  Cranch  C.  C.  84;  State  v. 
Doty,  32  N.  J.  L.  403;  Houston  v.  Wordsworth,  65  N.  C.  41. 

^  Ante,  §  348,  subsec.  3;  Tomlin  v.  Cox,  19  N.  J.  L.  76;  Knight  v. 
Freeport,  13  Mass.  218 ;  Mench  v.  Bolbach,  4  Phila.  68 ;  Simpson  v.  Kent, 
9  Phila.  30. 

3 1  Hawk.  P.  C.  (Curw.  Ed.),  p.  4GG,  §  2. 

*  1  Bish.  Cr.  L.  Gth  ed.,  §  385.  See,  in  support  of  Mr.  Bishop's  view, 
Snell  V.  Tinibiell,  1  Strange,  643. 

^  Affidavits,  not  explained  away,  casting  suspicion  of  such  misconduct 
on  the  prevailing  party  will  have  this  effect.  Huston  v.  Vail,  51  Ind. 
299.    But  see  United  States  v.  Chaffee,  2  Bond,  147. 


§   364.]  TAMPERING  WITH  JURIES.  439 

one  for  him,  deliver  to  the  juiy,  or  to  a  juror,  a  paper,  the 
tendency  of  which  is  to  infliiouce  the  verdict  in  favor  of 
such  party,  without  the  consent  of  the  opposite  party,  or 
leave  of  court,  a  verdict  given  in  his  favor  will  be  set 
aside. ^  So,  of  course,  bribery  of  a  juror  is  always  ground 
for  a  new  trial. ^  But  the  mere  fact  that  the  principal  wit- 
ness and  beneficial  plaintiff  in  a  qui  tain  action  had  circu- 
lated, in  the  vicinity  of  the  court,  a  printed  statement  of 
his  case  substantially  the  same  as  that  afterwards  furnished 
by  his  testimony  at  the  trial,  was  held  l)y  the  court  of 
King's  Bench  no  ground  for  a  new  trial,  it  not  appearing 
that  any  juror  had  seen  it.  The  decision  proceeded  on  the 
ground  that  it  was  not  shown  that  the  paper  had  any  effect, 
actual  or  probable,  on  the  verdict.^ 

(6.)  Affidavits  of  Jurors  admissible  to  show. —  The  bet- 
ter to  detect  and  punish  an  offense  so  dangerous  to  the  up- 
right administration  of  justice,  the  courts  have  made  an  excep- 
tion to  the  general  rule  that  the  affidavits  of  jurors  will  not 
be  received  to  impeach  their  verdicts  ;  so  that  such  affida- 
vits are  freely  received  to  show  attempts  at  bribery,  or 
other  corrupt  or  undue  influence.*  And  some  courts  have 
gone  so  far  as  to  make  the  distinction  that,  while  such  affi- 
davits will  be  received  to  show  the  fact  of  the  improper 
communication  with  members  of  the  jury,  they  will  not  be 
listened  to,  so  far  as  they  seek  to  disclose  what  effect  it  had 
upon  the  minds  of  the  affiants  or  their  fellow  jurors.'^ 

(7.)  Communications  by  Friends  of  the  Prevailing 
Party. —  So  sensitive  is  the  law  upon  this  subject,  that  if, 
during  the  progress  of  the  trial,  friends  of  the  prevailing 
party  have  had  conversations  with  members  of  the  jury,  or 

1  5  Bac.  Abr.  291;  Sheaff  v.  Gray,  2  Yeates,  273;  Hsffi-oii  v.  Gallupe, 
85  Me.  563. 

2  Ritchie  v.  Holbrooke,  7  Serg.  &  R.  45S;  Havvliiiis  v.  Li.  Printing 
Co.,  29  La.  An.  134. 

3  Spencely  v.  De  Willott,  3  Smith  (K.  B.)  322. 

•*  Ritchie  v.  Holbrooke,  7  Serg.  &  R.  458;  Hawkins  v.  Louisiana 
Printing  Co.,  29  La.  An.  131;  Taylor  v.  Everen,  2  How.  Pr.  23;  Thomas 
V.  Chapman,  45  Barb.  98. 

*  Taylor  v.  Everett,  supra;  Thomas  v.  Chapman,  supra. 


440  IMPROPER  COMMUNICATIONS.  [CII.   XVII. 

have  nuidc  declarations  in  their  hearing,  with  the  apparent 
purpose  of  influencing  the  verdict  in  his  favor,  the  direct 
tendency  of  which  was  so  to  influence  it,  the  verdict  will 
not  be  allowed  to  stand  ;  and  this  is  so,  although  it  may  not 
appear  in  point  of  fact  that  the  verdict  was  influenced  by 
the  unlawful  conversations,  and  although  they  w^re  had 
with  the  jurors  without  the  knowledge  or  authorization  of 
the  prevailing  party. ^ 

(8.)  By  Ids  Counsel. — But  the  mere  fact  that  the  attor- 
ney of  the  prevailing  party  in  a  suit  has  been  so  far  forget- 
ful of  the  proprieties  of  his  office  as  to  discuss  the  merits  of 
the  suit  in  a  public  i)lace,  wliere  his  remarks  were  casually 
overheard  by  some  of  the  jurors,  has  been  held  not  of 
itself  ground  for  a  new  trial  ;  especially  in  view  of  the  fact 
that,  on  being  reminded  that  some  of  the  jurors  were  pres- 
ent, he  desisted  from  further  conversation  on  the  subject, 
and  in  view  of  the  further  fact  that  the  court  below  did  not 
consider  it  sufficient  ground  for  a  new  trial. '^  So,  where  the 
attorney  of  the  prevailing  party,  seeing  a  juror  leaving  the 
court  house,  asked  him  if  the  jury  had  agreed  on  a  verdict, 
and  was  answered  in  the  negative,  and  nothing  further  passed 
between  them,  this  was  no  ground  for  a  new  trial. ^ 

(9.)  By  the  Prosecuting  Witness  in  a  Criminal  Case. — 
In  criminal  cases,  Avherc  the  law  humanely  presumes  inno- 
cence, the  defendant  is  entitled  to  the  benefit  of  the  same 
rule.  Accordingly,  where  the  prosecutor  in  an  indictment 
for  perjury  exhibited  at  the  place  of  trial  in  several  public 
places  during  the  term,  certain  papers  which  were  of  a  na- 
ture to  create  an  impression  unfavorable  to  the  prisoner, 
and  where  there  were  affidavits  (denied,  however,  by  affida- 
vits of  the  jurors),  that  these  papers  had  been  exhibited 
and  read  in  the  hearing  ot  some  of  the  jurors, —  a  new  trial 
was  granted.     "  "We  should  not,"  said  the  court,  "  hesitate 

1  McDaniels  v.  McD;inie].<,  40  Vt.  3G3;  Bnidbiuy  v.  Cony,  62  Me.  223; 
Kesmiih  v.  Clinton  Fire  Ins.  Co.,  S  Abb.  Fr.  141.  See  al.'^o  Hamilton  v. 
Pease,  38  Conn.  ILt:  ^IcInLiie  v.  Hussey,  iu  Me.  4'j:j;  Cilley  v.  Bartlett, 
19  N.  H.  312,324;  ileft'ron  v.  Galhipe,  55  Me.  5G3,  5GS-70. 

2  Turner  v.  St.  John,  3  Coldw.  370. 

3  Carnaghan  v.  Ward,  8  Nev.  30.     See  also  Lee  v.  McLeod,  15  Nev.  158. 


§   364,^  TAMPERING  WITH  JUIJIES.  441 

a  moment  to  set  aside  a  verdict  obtained  by  a  party  in  a  civil 
case  under  such  circumstances  ;  and  although  it  Avould  be 
partly  to  punish  his  misconduct,  and  the  State  is  here  in  no 
fault,  yet  we  think  the  respondent  in  a  criminal  case,  where 
the  law  humanel}'  presumes  innocence,  is,  within  the  discre- 
tion of  the  court,  under  circumstances  like  the  present,  en- 
titled to  the  benefit  of  the  same  rule.^ 

(10.)  By  Officious  Third  Persons. —  In  like  manner  a 
verdict  will  be  set  aside  in  a  civil  case,  if  it  be  made  to  ap- 
pear that,  during  the  trial  of  the  case,  a  third  person,  in  the 
interest  of  the  successful  party,  approached  a  juror  and 
made  statements  to  him  prejudicial  to  the  character  of  the 
unsuccessful  party  for  morality  and  integrity  ;  and  espe- 
cially, if  the  successful  party  himself,  knowing  that  such 
third  person  had  made  such  statements,  handed  to  the  juror 
a  pamphlet  having  a  tendency  to  confirm  his  mind  in  the 
belief  of  their  truth. ^  In  a  case  in  New  York,  it  is  said 
that  a  verdict  will  not  be  set  aside  merely  because  there  has 
been  such  a  case  of  tampering  by  a  third  persou,  if  it  clearly 
appear  that  no  injustice  has  been  done,  and  that  the  inter- 
ference did  not  affect  the  result ;  yet  if  it  appear  that  they 
have  been  approached  by  such  a  person  in  such  a  manner  as 
might  have  influenced  their  verdict,  it  would  be  set  aside, 
without  reference  to  the  source  or  motive  of  the  inter- 
ference.^ 


1  State  V.  Hascall,  6  N.  H.  352,  360,  363. 

2  Hamilton  v.  Pease,  38  Conn.  115.  This  was  an  action  against  Pease, 
Avlio  was  tnistee  of  a  society  of  Shakers,  for  diverting  a  stream  of  water. 
The  plaintiff  iiad  been  instrumental  in  printing  and  circulating  through 
the  neighborhood  a  pamphlet  strongly  defamatory  of  the  Shakers,  con- 
taining many  st;  tements  against  their  morality.  On  the  trial,  one  J.  W. 
Pease,  a  cousin  of  the  plaintiff,  had  conversed  with  one  of  the  jury 
about  the  case,  and  told  him  of  the  existence  of  this  pamphlet,  and  of 
the  nature  of  its  contents.  The  juror  having  expi-essed  a  wish  to  see  it, 
the  person  in  question  handed  a  copy  of  it  to  the  plaintiff  and  requested 
him  to  hand  it  to  the  juror,  which  he  did;  and  the  juror  read  the  pam- 
phlet during  the  trial  and  before  the  verdict  was  rendered.  This  was 
regarded  as  a  gross  case  of  tampering  with  the  jurj-,  for  which  a  new 
trial  was  granted. 

3  Nesmith  v.  Clinton  Fire  Ins.  Co.,  8  Abb.  Pr.  141. 


442  IMPROPER  COMMUNICATIONS.  [CH,.  XVII. 

(11.)  Presumption  from  such  Undisclosed  Communica- 
tions.—  Nay,  more  ;  if  it  be  made  to  appear  that  during  the 
progress  of  a  trial,  or  while  the  jury  were  deliherating,  com- 
munications took  place  between  members  of  the  jury  and 
the  prevailing  party,  their  counsel  or  their  friends,  the  na- 
ture of  which  is  undisclosed,  a  presumption  will  arise  against 
the  integrity  of  the  verdict,  and  it  will  not  be  permitted  to 
stand.  ^ 

(12.)  Rule  ivhere  the  Communication  is  disclosed. — 
But  where  the  nature  of  the  communication  is  disclosed, 
Avhether  or  not  it  will  vitiate  the  verdict  will  depend  upon 
the  question  whether  it  has  an  apparent  tendency  to  preju- 
dice the  cause  of  the  unsuccessful  party ;  for  it  must  be 
kept  in  mind  that  it  is  not  every  communication  with  jurors 
that  will  entitle  the  unsuccessful  party  to  a  new  trial.  In 
modern  trials  of  civil  causes  and  of  indictments  for  misde- 
meanors, and  even,  in  some  jurisdictions,  for  felonies,  the 
practice  of  isolating  jurors  from  the  rest  of  the  public, 
pending  adjournments  from  day  to  day,  has  been  aban- 
doned. It  has  been  deemed  more  practical  and  equally 
safe,  to  trust  to  the  integrity  of  the  jurors  themselves,  after 
being  admonished  from  the  bench  to  hold  comnmnication 
with  no  one  touching  the  cause  on  trial.  Where  such  a 
practice  obtains,  it  is  obviously  impossible  to  prevent  jurors 
from  hearing  indiscreet  or  officious  remarks  made  by  by- 
standers or  other  persons.  To  set  aside  a  verdict,  otherwise 
regularly  rendered,  and  apparently  in  accordance  with  the 
merits  of  the  case,  merely  because  some  of  the  jurors  have 
been  compelled,  however  reluctantly,  to  listen  to  such  re- 
marks, Avould  be  to  deprive  an  honest  suitor  of  a  right  fairly 
obtained,  on  account  of  a  thing  which  has  hap[)ened  with- 
out any  fault  of  his  own.  The  rule  which  we  are  consider- 
inof  does  not  extend  so  far.  In  such  cases  the  verdict  is  not 
disturbed,  unless  there  has  l)een  obvious  or  apparent  preju- 
dice.^      Thus,  a  verdict  will  not  be  set  aside  on  account  of 

1  Martin  v.  Morelock,  32  111.  485;  Toinlin  v.  Cox,  19  N.  J.  L.  7G;  Da- 
vidson V.  Manlove,  2  Coldw.  346;  ante,  §  348,  subseo.  2. 

2  Wise  V.  Boslejs  32  Iowa,  34:  State  v.  Cucuel,  31  X.  J.  L.  2G2;  Brake 
V.  State,  4  Baxter,  361. 


§   365.]  COMMUNICATIONS  MADE  BY  JURORS.  443 

a  casual  remark  made  by  the  prevailing  party,  to,  or  in  the 
presence  of  a  juror,  not  knowing  him  to  be  such,  if  there  is 
no  reason  to  believe  that  prejudice  to  the  other  party  re- 
sulted from  it.^  And  if  it  be  made  to  appear  that  the  coun- 
sel for  the  moving  party  had  notice,  during  the  progress  of 
the  trial,  of  communications  between  the  opposite  party  and 
some  of  the  jurors  —  such  notice  as  was  sufficient  to  put 
him  on  inquiry, —  and  made  no  objection  at  the  time,  he 
"will  be  taken  to  have  consented  to  abide  the  result,  and 
cannot  make  the  fact  of  such  communications  a  ground  for 
a  new  trial. ^ 

(13.)  Party  moving  for  New  Trial  on  this  Ground  must 
himself  be  Innocent. —  In  a  case  where  a  corrupted  juror 
endeavored  to  make  it  appear  that  the  unsuccessful  party 
had  also  tampered  with  him,  the  Court  of  Appeals  of  New 
Jersey  laid  down  the  following  rule  :  "  Where  both  parties 
are  innocent,  a  tainted  verdict  will,  in  general,  be  set  aside 
without  hesitation,  on  the  application  of  either  party.  But 
the  same  principles  of  public  policy  which  require  us  to  set 
aside  the  verdict  in  such  a  case,  imperatively  forbid  our  doing 
it  on  the  application  of  one  Avho  has  attempted,  directly  or 
indirectly,  to  influence  the  jury  by  improper  means,  or  who 
has  encouraged  or  promoted,  or  knowingly  permitted  such 
an  attempt,  or  even  rests  under  any  just  suspicion  of  having 
done  so." ^ 

§  365.  Comiimiiications  made  by  Jurors. —  (1-)  Gen- 
eral Rule. —  We  have  hitherto  been  considering  the  effect 
of  communications  made  to  jurors  by  various  persons.  We 
shall  now  consider  the  effect  of  communications  made  by 
jurors  to  persons  not  of  the  panel.  It  may  be  stated,  as  a 
general  rule,  that  such  communications  afford  no  ground 
for  a  new  trial,  unless  they  are  of  such  a  nature  as  clearly 
to  show^  a  disregard  on  the  part  of  the  juror  of  what  be- 

1  Wise  V.  Bosley,  32  Iowa,  34;  Shea  v.  Lawrence,  1  Allen,  167 ;  Smith  v.. 
Lovejoy,  G2  Ga.  372.     See  also  Cohron  v.  State,  20  Ga.  753. 

2  Fessenden  v.  Sager,  53  Me.  531,  536. 

3  Hutchinson  v.  Consumers  Coal  Co.,  36  N.  J.  L.  24,  29.     Opinion  b>r 
Woodhull,  J. 


444  IMPROPER  COMMUNICATIONS.  [CH.  XMI. 

longs  to  his  position,  or  :in  unfitness  to  discburgo  the  trust 
reposed  in  him.^ 

(2. )  Communicatiojis  hy  Jurors  to  Parties. —  Communi- 
cations made,  or  attempted  by  members  of  a  jury,  to  the 
parties,  their  agents,  rehitives  or  counsel,  though  censura- 
ble and  subjecting  the  jurors  themselves  to  punishment, 
afford  no  ground  for  setting  aside  their  verdict,  if  the  party 
himself  is  "without  fault. ^  Thus,  after  the  jury  in  a  civil 
•case  had  retired  to  consider  of  their  verdict,  one  of  them 
separated  himself  from  his  fellows  and  attempted  to  send 
to  the  plaintiff  a  letter  having  no  connection  with  the  suit, 
with  the  request  that  the  plaintiff  send  it  to  the  juror's 
Avife.  The  letter  was  burned  by  the  sheriff  before  reaching 
the  plaintiff,  who  was  free  from  blame  in  the  matter.  It 
was  held  that,  although  the  juror  was  censurable  for  this 
conduct,  yet  it  was  no  ground  for  setting  aside  the  verdict.^ 
So,  where  there  was  no  court  house  at  the  place  of  trial  of 
a  civil  action,  and  the  jur}^  deliberated  out  of  doors,  and 
one  of  them,  while  passing  the  plaintiff's  son  in  the  street, 
told  him  that  his  father's  nearest  neighbors  on  the  jury 
were  the  hardest  against  him,  or  were  for  the  lowest  dam- 
ages, to  which  the  son  made  no  reply  ;  and  another  juror, 
shortly  afterwards  told  him  nearly  the  same  thing,  to  which 
the  son  simply  replied  that  he  had  heard  the  same  from  the 
first  juror  —  this  was  no  ground  for  a  new  trial.*  The  same 
ruling  M'as  made  in  a  case  where,  during  the  trial  of  an  in- 
dictment for  rape,  a  juror,  without  permission  of  the  court, 
or  consent  of  the  prisoner,  left  his  seat  in  the  jury-box, 
advanced  to  where  the  prosecuting  attorney  was  sitting,  and 
whispered  something  in  his  ear.  The  district  attorney 
made  no  reply,  but  merely  shook  his  head  ;  whereupon  the 
juror  immediately  returned  to  his  seat.  .  All  this  occurred 
in  open  court  in  the  presence  of  the  accused,  the  officers  of 
the  court,  counsel   of  the   accused,   and   the  other  jurors, 

1  McCarty  v.  Kitchen,  59  Ind.  500. 

2  Lee  V.  McLeod,  15Xev.  1.58. 

a  Eicli  V.  Taylor.  20  Minn.  378. 

-*  Yancy  v.  Downer,  5  Littell,  8,  11. 


§   365.]  COMMUNICATIONS  MADE  BY  JURORS.  445 

The  verdict  being  in  accordance  with  the  hiw  and  the  evi- 
dence, it  was  held  that  this  was  no  ground  for  a  new  trial. ^ 
So,  the  mere  fact  that  a  juror  attempts  to  announce  the  ver- 
dict to  one  of  the  parties  before  it  is  delivered  in  court,  has 
been  held  no  ground  for  a  new  trial. ^  The  contrary  has 
been  held  where  the  oath  administered  to  the  jurors  required 
them  to  keep  it  secret  until  they  had  delivered  it  in  court ;  ^ 
though  it  has  been  held  otherwise  where  a  juror,  having 
taken  a  like  oath,  merely  disclosed  the  fact  that  the  jury 
had  agreed  upon  a  verdict.* 

(3.)  To  third  Persons. —  The  same  rule  for  stronger 
reasons,  is  undoubtedly  applicable  to  declarations  made  by 
jurors  to  third  persons  respecting  the  cause  on  trial.  The 
party  who  obtains  a  verdict  fairly  and  in  accordance  with 
law,  ought  not  to  be  deprived  of  it  merely  because  a  juror 
has  made  idle  or  inadvertent  remarks  about  the  cause.  But 
there  is,  of  course,  a  limit  to  this.^  A  juror  may  make  re- 
marks about  a  case  in  which  he  is  sitting  as  a  juror,  which 
show  such  a  prejudice  or  such  a  disposition  to  disregard  his 
oath  as  a  juror,  as  to  make  it  obviously  improper  for  a  ver- 
dict rendered  by  him  to  stand.  Thus,  in  a  late  civil  case  in 
Illinois,  it  was  alleged  that  two  jurors,  pending  the  trials 
after  part  of  the  proofs  were  heard,  and  before  the  case 
had  been  fully  submitted  to  them,  publicly  and  in  the 
presence  of  several  persons,  discussed  the  merits  of  the 
controversy  ;  and  that  each  of  them  said,  in  substance,  that 
there  was  no  merit  in  the  defense,  and  that  he  would  tind 
for  the  plaintiff,  no  matter  what  argument  might  be  made 
by  counsel,  or  what  instructions  might  be  given  by  the 
court.  The  court  said  that  this  conduct,  if  it  happened  as 
stated,  was  good  ground  for  a  new  trial  ;  but  as  it  was  dis- 
puted   by  the    atfidavits  of  the  jurors,   the  new  trial    was 

1  State  V.  Fruge,  28  La.  An.  657. 

2  Fash  V.  Byrnes  14  Abb.  Pr.  12. 

3  Orcutt  V.  Carpenter,  1  Tyler  (Vt.)  250. 
■•  Nichols  V.  Bronson,  2  Day,  211. 

5  In  addition  to  tlie  eases  below  cited,  see,  in  illustration  of  this,  Stock- 
well  V.  Railroad  Co.,  43  Iowa,  470;  Chalmers  v.  Whlttemore,  22  Mina.. 
305. 


446  IMPROPER  COMMUNICATIONS.  [CH.  XVII. 

grunted  on  unothcr  uroiuul.^  In  :i  civil  case,  if  improper 
rcmiirks  made  by  a  juror  are  brought  to  the  attention  of 
counsel  before  the  case  is  tinally  submitted  to  the  jury,  and 
they  choose  not  to  call  the  attention  of  the  court  to  it,  but 
to  remain  silent,  and  take  their  chances  of  a  favorable  ver- 
dict, they  cannot  afterwards  make  it  a  ground  for  a  new 
trial ;  for  this  would  be  inconsistent  with  good  faith  towards 
the  opposite  part}^  and  towards  the  court.  It  was  5o  held 
where  a  juror,  pending  an  adjournment  of  court,  after  the 
evidence  was  closed,  but  before  the  arguments  of  counsel 
had  been  heard,  had  remarked  in  the  presence  of  bystand- 
ers that  it  would  be  useless  for  the  lawyers  to  make 
speeches  to  him,  as  his  mind  was  made  up,  and  nothing 
which  they  could  say  would  change  it.^  So,  where  a  juror, 
after  the  evidence  was  heard,  said  that  he  had  made  up 
his  mind ;  that  all  he  wanted  to  hear  was  the  judge's 
charge,  and  that  whatever  should  be  said  (by  counsel) 
would  not  alter  his  mind,  this,  though  improper,  was  not 
sufficient  ground  for  a  new  trial.  "  It  does  not  appear," 
said  the  court,  "  that  he  would  not  give  due  attention  to  the 
arguments,  although  he  supposed  the  case  so  well  under- 
stood by  him  that  they  would  avail  nothing.  There  is 
nothing  showing  in  whose  favor  he  had  formed  an  opinion, 
or  that  he  had  been  influenced  by  anything  excepting  the 
evidence  in  the  case.  If  he  speaks  the  truth,  he  was  de- 
sirous of  hearing  the  charge  from  the  court ;  and,  when 
that  should  be  made,  he  believed  he  should  be  prepared 
with  an  opinion,  which  would  be  satisfactory  to  himself 
without  further  aid.  We  do  not  think  this  so  objectionable 
as  to  make  it  proper  to  disturb  the  verdict  therefor."  ^  So, 
during  a  recess  of  the  court,  while  a  civil  trial  was  in  pro- 
gress, one  of  the  jurors  was  heard  to  say  to  a  bystander 
that  he  thought  that  the  witnesses  who  swore  for  the  plain- 
tiff testified  very  fairly,  and  that  the  testimony  on  the  part 
of   the    defendants  looked    dark,  and    made    other  similar 

^  Jewsbnry  v.  Spcrry,  85  111.  56. 

2  Martin  v.  Ti(l\vell/36  Ga.  332,  345. 

3  McAllister  v     ibley,  25  Me.  474,  488. 


§   3(55.]  COMMUNICATIONS  MADE  BY  JURORS.  447 

declarations,  it   was  held   that   there  was  no  ground  for  a 
new  trial. ^ 

(4.)  Remarks  of  Jurors  indicating  Prejudice. —  Ver- 
dicts have  been  set  aside  on  account  of  misconduct  of  jurors 
so  gross  as  to  lead  to  an  unavoidable  inference  that  they  did 
not  have  a  proper  appreciation  of  their  duties  and  responsi- 
bilities as  jurors.  And  where  a  juror  so  far  forgets  his 
duty  as  to  make  remarks  to  bystanders,  concerning  the 
party  or  his  counsel,  against  whom  the  verdict  is  afterwards 
rendered,  which  show  a  feeling  of  passion  or  prejudice  in 
his  mind  against  them,  it  will  be  ground  for  a  new  trial, 
unless  the  verdict  is  clearly  right  on  the  merits.  The  rea- 
son is,  that  he  who  indulges  in  such  remarks  in  a  manner 
forestalls  his  own  judgment,  and  commits  himself  to  a  par- 
ticular verdict,  so  that,  although  subsequent  evidence  or  a 
consultation  with  his  fellows  might  be  sufficient  to  induce 
him  to  change  his  mind,  yet  the  pride  of  individual  opinion 
will  prevent  him  from  doing  so.^     But  the  fact  that  a  sin- 

1  Jackson  v.  Smith,  21  Wis.  26. 

2  In  a  recent  case  tried  in  tlie  Circuit  Court  of  tlie  United  States  for 
the  District  of  Iowa,  a  verdict  was  given  for  the  defendant,  and  it  was 
shown  by  the  affidavit  of  a  bystander,  that  one  of  the  jurors,  while  the 
case  was  in  progress  and  undecided,  had  said  to  him  of  the  plaintiff's 
counsel,  in  a  sneering  waj',  that  "  Hageruian  had  the  court  room  full  of 
Keokuk  people,  who,  whenever  he  said  anything,  applauded;  and  that 
Keokuk  thought  they  had  got  this  thing  fixed  up  verj^  nice."  It  was  not 
true  that  auy  applause  had  been  attempted  in  the  court  room.  The 
court  granted  a  new  trial,  resting  its  decision  chiefly  on  this  affidavit. 
In  so  deciding.  Love,  J.,  used  the  following  language:  "There  is  no 
right  more  sacred  than  the  right  to  a  fair  trial.  There  is  no  wrong  more 
grievous  than  the  negation  of  that  right.  An  unfair  trial  adds  a  deadly 
pang  to  the  bitterness  of  defeat.  Now  the  human  mind  is  constituted  so 
that  what  one  himself  publicly  declares,  toucliing  any  controvei-sy,  is 
much  more  potent  in  biasing  his  judgment  and  confirming  his  predilec- 
tions, than  similar  declarations  which  he  may  hear  uttered  by  other 
persons.  When  most  men  commit  themselves  publicly  to  any  fact,  theory 
or  judgment,  they  are  too  apt  to  stand  by  their  own  public  declaration 
in  defiance  of  evidence.  This  pride  of  opinion  and  of  consistency  belongs 
to  human  nature.  Where,  therefore,  a  juror  talks  outside  of  the  jury- 
room  about  a  case  pending  and  undecided  before  him,  he  gives  the 
clearest  evidence  that  he  is  not  an  impartial  and  unbiased  juror.  The 
very  discussion  of  any  matter  by  a  juror  elsewhere  than  in  the  jury 
room,  tends  to  the  forming  of  false  impressions  and  prejudgments.     Nor 


448  IMPROPER  COMaiUNICATIONS.  [f  II.  XMI. 

glc  juror  during  :i  recess  in  the  tritil  of  a  civil  case,  said  to 
one  of  the  counsel  that  there  was  no  use  in  taking  up  time 
in  trying  to  liunibug  the  jury,  and  that  the  hiwyer  who  made 
the  shortest  speech  would  win  the  case,  was  not  deemed  suf- 
ticient  to  vitiate  the  yerdict.^  So,  where  a  juror,  after  hav- 
ing heard  the  eviden(;e,  remarked,  in  the  presence  and  hear- 
ing of  a  bystander,  "  that  he  [the  unsuccessful  party]  could 
not  hold  the  property  ;  that  he  had  exhibited  a  little  piece 
of  paper  about  as  big  as  a  man's  hand  as  his  title  ;  and  that 
he  [the  juror]  believed  that  Foster  [the  unsuccessful  party] 
had  never  paid  anything  for  the  negroes,  any  more  than  he 
[the  juror]  had," — this  conduct,  though  highly  censurable^ 
was  held  in  strictness  no  ground  for  a  new  trial,  though  a 
new  trial  was  granted  on  other  grounds.^  So,  where  a  juror 
separated  from  his  fellows,  and,  at  dinner,  asked  a  stranger 
how  he  thought  the  case  would  go,  and  the  stranger  an- 
swered that,  judging  from  outside  rumor,  the  jury  would 
find  for  the  defendant,  but  from  the  appearance  of  the  jury 
he  thought  it  would  find  for  the  plaintiff ;  and  the  juror  re- 
plied, "  Yes,  by  God,  I  know  it  will,"  and  the  jury  after- 
wards found  for  the  plaintiff, —  it  was  held  that  there  was 
no  ground  for  a  new  trial.  The  remark  was  a  mere  expres- 
sion of  the  juror's  opinion  of  the  evidence,  and,  though  a 

will  it  do  for  a  moment  to  accept  the  statement  of  the  jnror,  that  what  lie 
has  said  or  heard  has  not  affected  his  judgment  or  influenced  liis  verdict. 
Almost  any  juror,  when  detected  in  such  misconduct  and  arraigned  for 
it,  will  disclaim  the  influence  upon  his  own  mind  of  what  he  has  uttei-ed 
iu  violation  of  liis  duty.  This  is  human  nature.  Moreover,  few  have 
either  the  capacity  or  candor  to  speak  with  any  reliable  certainty  of  the 
elements  which  enter  into  their  own  minds'in  pronouncing  a  judgment 
or  verdict.  The  only  safe  rule  for  the  court  to  follow  is,  to  foi-m  its  judg- 
ment from  the  natural  and  logical  consequences  of  tiie  juror's  words 
and  conduct,  with  little  regard  to  his  protestations  ii  exculpation  of 
himself.  All  parties,  and  especially  corporations,  liave  a  deep  concern 
iu  keeping  juries  strictly  to  the  line  of  duty  and  propriety.  When  tliey 
deviate  from  that  line,  there  is  no  longer  any  secui-ity  against  those  ma- 
lign, extrinsic  influences  which  are  sure  to  pervert  and  poison  the 
streams  of  justice."  Poole  v.  Chicago,  etc.  R.  Co.,  12  Cent.  L.  J.  492, 
494;  s.  c,  6  Fed.  Rep.  844;  11  Reporter,  828. 

1  Taylor  v.  Cal.  Stage  Co.,  G  Cal.  228. 

2  Foster  v.  Brooks,  6  Ga.  287,  297. 


§   365.]  COMMUNICATIONS  MADE  BY  JURORS.  449 

contempt  of  court,  for  which  he  might  have  been  punished, 
it  did  not  appear  that  any  prejudice  to  the  defendant  had 
resulted  from  it.'  But  where,  in  a  civil  case,  two  of  the 
jury,  while  charged  with  the  consideration  of  the  case,  con- 
versed with  persons  not  jurors  about  the  case,  discussed  its 
merits,  and,  in  the  presence  of  a  number  of  persons  at  table, 
commented  upon  the  evidence  and  misstated  it,  by  saying 
that  the  defendant,  sworn  as  a  witness,  had  contradicted 
himself,  this  was  such  a  gross  violation  of  duty  that  the 
verdict  should  have  been  set  aside,  and  the  jurors  pun- 
ished.^ 

^  Harrison  v.  Price.  22  Ind.  105,  1G8. 
2Blalockv.  Phillips,  38  Ga.  21G,  221. 

(29) 


450  EATING  AND  DRINKING.  [cil.   XVIII. 


CHAPTER  XVIII. 


(>F  EATING  AND  DRINKING,  MEDICINE  AND  ENTERTAINMENT. 
SECTION. 

370.  Juries  allowed  Refreshments  in  Modern  Trials. 

371.  What  if  procured  without  the  Knowledge  of  the  Court. 

372.  Or  at  the  Expense  of  the  Successful  Pai'tj'. 

(1.)  The  General  Rule. 
(2.)  Illustrations. 

373.  Recent  Limitation  of  the  Rule  in  England. 

374.  This  Limitation  denied  in  Nevada. 

375.  Rule  does  not  extend  to  Ordinary  and  Customary  Civility  and 

Hospitalitj'. 
'   376.    Otherwise  in  case  of  unusual  Civilities,  such  as  excite  Suspicion. 
377.    Xor  to  Cases  where  Refreshments  were  furnished  by  the  Un- 
successful Pai'ty. 
37S.     Use  of  Intoxicating  Liquors  by  the  Jury. 

(1.)  In  some  Jurisdictions  vitiates  the  Verdict. 

(2.)  The  General  Rule  otherwise. 

(3.)  Unless  drunk  while  the  Jury  are  sitting  as  such. 

(4.)  Or  unless  the  Drinking  is  attended  with  other  Circum- 
stances of  31isconduct. 

(5.)  Or  where  the  Liquor  was  furnished  by  the  Successful 
Party  or  his  Counsel. 

(6.)  Construction  of  Statutes  —  Giving  '•  by  AVay  of  Treat.'' 

(7.)  The  (/orrect  Rule  suggested. 
U70.    Receiving  Gratuities  —  Fees  of  a  Juror  who  is  also  a  Witness. 

§  370.  Juries  allowed  Refreshments  in  3Iodern  Trials. — 

By  the  ancient  common  law,  as  is  well  known,  juries  were 
to  be  kept  together,  while  deliberatino;  upon  their  ver- 
dict without  food,  drink,  fire  or  candle,  until  they  were 
agreed.^  In  modern  times  this  usage  has  been  relaxed, 
but  it  is  still  the   practice  in  criminal  trials,  and,  in  some 

^  Co.  Litt.  227.  b. 


§   371.]      WITHOUT  THE  KIsOWLEDGE  OF  THE  COURT.  451 

jurisdictions,  in  civil  trials,  that  the  jury  are  not  to  be  fur- 
nished with  refreshments,  except  upon  order  of  the  court. '^ 
A  court  will  always,  on  application  of  the  jury,  allow  them 
seasonable  refreshments,  medicine,  and  such  other  necessa- 
ries as  can  be  furnished  without  exposing  them  to  outside 
influence,  and  such  exercises  of  discretion  cannot  be  assigned 
for  error. '^ 

§  371,  Wliat  if  procured  without  the  Knowledge  of  the 
Court. —  The  mere  fact  that  jurors  send  out  during  their  de- 
liberations, by  their  bailiff,  and  procure  refreshments,  with- 
out the  permission  of  the  court,  will  not,  in  the  absence  of 
:iny  suspicion  of  improper  influence,  be  ground  for  setting 
aside  their  verdict,  although  such  conduct  is  censurable, 
and  perhaps  punishable.^  Indeed,  it  is  a  settled  rule  of 
law,  dating  back  to  a  very  early  period,  that  the  mere  fact 
that  the  jury  eat  and  drink  at  their  own  cost,  or  otherwise 
than  at  the  cost  or  by  the  procurement  or  favor  of  the  suc- 
cessful party,  while  deliberating  on  their  verdict,  though  an 
irregularity,  will  not  be  ground  for  a  new  trial. ^     So,  where 

^  Purinton  v.  Humphrej^s,  6  Me.  379;  O'Barr  v.  Alexander,  37  Ga.  195. 

-  O'Shields  v.  State,  55  Ga.  696;  Reg.  v.  Xewton,  3  Car.  &  K.  85;  s.  c, 
13  Q.  B.  716;  3  Cox  C.  C.  489;  13  Jur.  606;  18  L.  J.  (M.  C.)  201,  where 
tiie  judge  allowed  a  sick  juror  brandj%  but  refused  him  beef  tea.  See 
nlso,  in  support  of  the  text,  State  v.  Town,  Wright  TOhio)  75;  Templeton 
V.  State,  5  Tex.  App.  399. 

3  Puriutou  V.  Humplireys,  6  Me.  379;  O'Barr  v.  Alexander,  37  Ga.  195; 
State  V.  Degonia,  69  Mo.  485. 

■•  State  V.  Sparrow,  3  Murph.  487;  Harrison  v.  Rowan,  4  Wash.  C.  C. 
32;  Austen  v.  Baker,  12  Mod.  250.  "  If  they  eat  and  drink  at  their  own 
costs,  by  assent  of  tlieir  keepers,  it  being  offered  by  their  keepers,  it 
shall  not  avoid  the  verdict.  Said  to  be  so  adjudged  in  divers  times.'" 
21  Vin.  Abr.  448,  tit.  Trial,  G.  g.  Tn.  Co.  Litt.  227.  b.,  it  is  said  that  if 
a  juror  eat  and  drink  at  his  own  expense  before  the  jury  have  agreed, 
lie  is  liable  to  be  fined,  but  the  verdict  is  good.  In  Duke  of  Richmond 
V.  Wise,  1  Ventr.  125,  the  jury  had  wine,  but  it  did  not  appear  to  be  at 
the  expense  of  either  party.  It  was  held  no  ground  for  a  new  trial. 
The  leading  American  case  in  support  of  the  text  is  Com.  v.  Roby,  12 
Pick.  496,  516,  where  the  subject  is  discussed  by  Chief  Justice  Shaw, 
witli  his  usual  ability,  and  many  authorities  examined.  See  also 
Thompson  v.  Com.,  8  Gratt.  637,  657;  Wilson  v.  Abrahams,  1  Hill 
(N.  Y.),  207.  Although  the  question  in  this  last  case  was  whether 
the  use   of  intoxicating  liquors  by   a  juror,  pending  the  trial,   is  o 


452  EATING  AND  DRINKING.  [ciI.  XVIII. 

:i  trial  is  pi-otr:icted  for  several  days,  it  is  decent  and  neces- 
sary, and  therefore  proper,  for  the  sheriff  who  has  charge 
of  the  jury  to  send  and  receive  for  them  messages  in  regard 
to  chan<»es  of  clothinc:,  and  to  send  for  and  brinjr  such 
chanjjes  of  clothino;  to  them.^ 

§  372.  Or  at  the  Expense  of  the  Successful  Party. — 
(1.)  The  General  Rule. —  Where  a  juror  has  been  treated, 
fed  or  entertained  by  the  successful  party,  or  at  his  ex- 
pense, a  new  trial  will,  in  nearly  all  cases,  be  granted. - 
This  rule  is,  by  most  courts,  deemed  indispensably  neces- 
sary to  preserve  the  integrity  of  juries.  It  being,  as  already 
stated,'  a  rule  of  public  policy,  it  will  be  enforced  without 
reference  to  the  question  whether  or  not  the  verdict  was 
right. 


itself  .sufficient  to  vitiate  the  verdict,  yet  the  general  subject  of 
the  effect  of  jurors  taking  refreshments  without  the  order  of  the 
court  was  considered  on  authority.  In  an  old  case  it  was  resolved  that 
"  if  the  jury  eat  and  drink  at  the  charge  of  the  party  for  whom  the  ver- 
dict is  found,  it  avoids  it;  and  if  at  their  own  charge,  they  are  only  fin- 
able." Rex  v.  Burdett,  12  Mod.  Ill ;  s.  c,  1  Ld.  Raym.  148.  In  another 
case  it  was  moved  in  arrest  of  judgment  that  the  jurors  had  taken 
meat  and  drink  before  their  verdict  was  given.  This  was  certified  on 
the  posiea,  but  not  examined  at  whose  charge.  The  court  said  :  "Tliat 
would  make  a  great  difference;  for  if  it  were  at  the  cost  of  the  party  for 
whom  they  gave  their  verdict,  it  would  make  the  verdict  void ;  but  if 
it  were  at  their  own  costs,  it  is  only  finable,  and  the  verdict  good." 
Harebottle  v.  Placock,  Cro.  .Jac.  21.  In  Co.  Litt.  227.  b.,  the  law  is  thus 
stated :  "•  If  the  jurie,  after  their  evidence  given  unto  them  at  the  barre, 
doe,  at  their  own  charges  eate  or  drinke,  either  before  or  after  the}'^  be 
agreed  on  their  verdict,  it  is  finable,  but  it  should  not  avoid  the  verdict; 
but  if  before  they  be  agreed  on  their  verdict,  they  eate  or  drinke  at  the 
charge  of  the  plaintife,  if  the  verdict  be  given  for  him  it  shall  avoid  the 
verdict:  but  if  it  be  given  for  the  defendant,  it  shall  not  avoid  it;  and 
flic  e  converso.  Buc  if,  after  they  be  agreed  on  their  verdict,  they 
eate  or  drinke  at  the  charge  of  him  for  whom  they  doe  passe,  it  shall  not 
avoid  the  verdict." 

1  State  V.  Caulfield,  23  La.  An.  148. 

2  Pelham  v.  Page,  6  Ark.  53.5,  538,  per  Oldham,  J. ;  Studley  v.  Hall,  22 
Me.  198;  Walker  v.  Walker,  11  Ga.  203,  20G;  Walker  v.  Hunter,  17  Ga. 
364,  414;  Sacramento,  etc.  Mining  Co.  v.  Showers,  6  Nev.  291;  Springer 
v.  State,  34  Ga.  379;  Drake  v.  Xewton,  23  N.  J.  L.  Ill ;  Pittsburgh,  etc. 
R.  Co.  v.  Porter,  32  Ohio  St.   328;  Mynatt  v.  Hubbs,  6  Heisk.  320. 

3  Ante,  §  364,  subsec.  5. 


§    37 y.]  LIMITATION  OF  THE  RULE  IN  ENGLAND.  453 

(2.)  Illustrations. —  Whilst  a  case  was  on  trial,  one  of 
the  counsel  for  the  prevailing  party  entertained  for  two 
nights  the  prevailing  party  and  two  of  the  jurj'mcn. 
For  this  reason  a  new  trial  was  granted. ^  Pendino-  the 
trial  of  an  issue  of  devisavit  vel  non,  a  juror  went 
home  with  the  caveator,  at  his  invitation,  and  was  there 
entertained  hy  him  at  his  expense.  The  juror  made 
an  affidavit  that  he  had  known  the  caveator  for  twenty 
years  ;  that  he  had  no  conversation  with  him  with  reference 
to  the  trial ;  and  that  the  circumstance  of  his  spending  the 
night  at  the  caveator's  house  did  not  influence  him  in  con- 
senting to  the  verdict.  The  verdict  having  been  for  the 
caveator,  a  new  trial  was  granted.^  During  the  progress  of 
the  trial,  before  the  jury  had  retired  to  deliberate,  and 
while  they  were  under  the  care  of  a  sworn  officer  for  the 
purpose  of  viewing  the  ground  in  controversy,  they  went 
into  a  saloon  and  drank  liquor  at  the  expense  of  the  pre- 
vailing party.  It  was  held  in  each  of  these  cases  that  the 
verdict  must  be  set  aside. ^  During  the  trial  of  an  indict- 
ment for  robbery,  one  of  the  counsel  for  the  State  took 
charge  of,  fed  and  })rovided  for,  during  the  night,  the  horses 
of  two  of  the  jurymen.  The  defendant  was  convicted. 
For  this  a  new  trial  was  granted.**  But  the  mere  fact  that 
the  jury  in  a  criminal  case,  were  kept  and  took  their  meals 
at  the  house  of  one  who  aided  the  prosecutor  in  impanel- 
ling the  jury,  was  held  no  ground  for  a  new  trial. ^ 

§  373.  Recent  T^iniitation  of  the  Rule  in  England. — 
The  doctrine  of  the  old  English  ))ooks  already  quoted  from," 
that  if  the  jury  eat  and  drink  at  their  own  expense,  they  are 
to  be  fined,  and  if  at  the  expense  of  a  party,  their  verdict 
is  void,  has  more  recently  been  hehl  to  apply  only  to  cases 


1  Walker  v.  Hunter,  17  Ga.  304,  414. 
^  Walker  v.  Walker,  11  Ga.  203. 

^  Sacramento,  etc.  Mining  Co.  v.  Showers,  6  Nev.  291. 
*  Springer  v.  State,  34  Ga.  379. 

5  Wilson  V.  State,  6  Baxt.   (Tenn.)    20G.      Compare  Odle  v.  State, 
Baxt.  (Tenn.)  159. 
'^  Ante,  §  371.   note. 


454  EATI.NtJ  AND  DUIKKING.  [CIl.  XVllI. 

where  all  that  remains  for  the  jury  is  to  doliheratc  and  give 
their  verdict,  and  even  then  to  cases  wiiere  the  whole  jury, 
and  not  one  or  more  of  them,  have  been  treated  or  enter- 
tained. "Those  cases,"  said  Lord  Anix(;EU,  C.  B.,  refer- 
ring to  the  old  cases,  "  seem  to  apply  to  the  whole  jury, 
and  only  to  acts  done  by  them  after  they  are  charged."  ^ 

§  374.  This  Liiuitation  denied  in  Nevada. —  In  a  case 
in  Nevada,  in  which  much  of  the  learning  on  the  subject  is 
gone  over,  this  limitation  is  denied,  and  it  is  held  that  the 
rule  that  a  verdict  in  favor  of  a  party  who  treats  or  enter- 
tains the  jury,  will  be  set  aside,  applies  to  any  treating  of 
any  of  the  jury  at  any  time  after  they  are  sworn  and  be- 
fore they  agree  on  their  verdict ;  whether  once  or  several 
times;  by  design  or  inadvertence;  in  the  presence  of  the 
officer,  or  in  his  absence  ;  and  whether  it  might  be  called 
for  or  uncalled  for  by  the  proprieties  of  life.^ 

§  375.  Rule  does  not  extend  to  Ordinary  and  Custoni- 
arj' Civility  and  Hospitality. —  Other  courts  tend  towards 
the  opinion  that  neither  the  rule  of  the  common  law  in 
question,  nor  statutes  declaratory  of  it,  such  as  exist  in 
some  of  the  States,  arc  to  be  so  applied  as  to  put  parties 
to  suits  under  the  restraint  of  denying  to  jurors  the  usual 
and  customary  ^offices  of  hospitality  and  civility.  Where 
jurors  drank  on  a  hot  day  at  the  house  of  the  defendant  in 
executing  a  Avrit  of  ad  quod  damnum^  which  they  had  there 
assembled  to  execute  ;  ^  where  jurors,  assembled  at  the  house 
of  the  petitioner  to  assess  damages  on  account  of  the  laying-^ 
out  of  a  road,  had  drunk  moderately  of  cider  belonging  to 
him  and  furnished  them  by  the  officer,  without  his  knowl- 
edge ;  *  where  the  ratable  inhabitants  of  a  town  had  enter- 
tained at  their  houses  members  of  a  jury  im[)anelled  to  try 
a  case  in  which  the  town  was  defendant ;  ^  where  the  nom- 
inal defendant,  who  had  no  substantial  interest  iu  the  suit^ 

^  MonLs  V.  Vivian,  3  0  Mees.  &  W.  137. 

'■^  Sacraaiento,  etc.  Mining  Co.  v.  Shower.-;,  G  Nev.  291,  302-3. 

3  Coleman  v.  Moody,  4  lien.  &  M.  1. 

*  Tripp  V.  Commissioners,  2  Allen,  55G. 

6  Carlisle  v.  Sheldon,  3S  Vt.  -140. 


§   375.]  CUSTOMARY  CIVILITY  AND  HOSPITALITY.  455 

entertained  at  his  house  every  night  a  member  of  the  jury 
while  the  trial  was  in  progress,  and  before  the  judge  had 
summed  up  and  sent  the  jury  out  to  consider  of  their  ver- 
dict —  it  appearing  that  it  was  customary  for  country  gen- 
tlemen so  to  entertain  jurors;^  where  an  employee  of  the 
defendant,  a  corporation,  went  with  a  friend  into  an  oyster 
saloon,  and  while  there,  casually  met  two  jurors,  and  the 
four  ate  oysters,  and  the  employee  paid  for  all  that  the 
four  had  eaten,  without  the  knowledge  of  the  jurors ; 
where  the  prevailing  party,  without  having  sought  a  juror 
for  that  purpose,  conveyed  him  to  his  home  in  his  wagon, 
a  distance  of  several  miles,  but  without  conversing  with 
him  about  the  case  —  the  court  having  adjourned  over  Sat- 
urday night  till  Monday  morning ;  ^  in  these  and  other  like 
cases,*  it  appearing  that  the  jurors  had  not  been  subjected 
to  any  improper  influence  other  than  that  complained  of, 
the  courts  have  refused  to  set  aside  verdicts  on  the  ground 
of  tampering. 

This  view  is  not,  however,  accepted  in  all  jurisdictions. 
Thus,  in  Georgia,  in  cases  where  counsel  for  the  prevailing' 
party,  without  any  imputation  of  improper  motive,  enter- 
tained members  of  the  jury,^  or  even  their  horses,^  new 
trials  were  granted.  The  court  in  this  latter  case  said : 
"The  honor  of  the  bar  and  the  perfect  purity  of  a  jury, 
alike  demand  their  entire  separation  in  their  personal  and 
social  intercourse  Avhilst  trials  are  progressing.  However 
harmless  in  themselves,  as  vvas  the  conduct  of  our  respected 
brethren  in  this  case,  we  feel  ourselves  called  upon,  in  this 
and  in  every  case  where  this  separation  is  not  preserved  with 
the  utmost  care,  to  evince  in  the  most  decisive  manner  our 


1  Morris  v.  Vivian,  10  Mees.  &  W.  137. 

2  Eakin  v.  Morris  Canal  Co.,  24  N.  J.  L.  538. 

3  Hilton  V.  Southwick,  17  Me.  303.     Compare  Co'tle  v.  Cottle,  cited  in 
the  next  section. 

*  Koester  v.  Ottumwa,  34  Iowa,  41. 
5  Walker  v.  Hunter,  17  Ga.  364. 
c  Springer  v.  State,  34  Ga.  370. 


456  EATIXG  AND  DRINKING.  [CH.  XVIII. 

purpose  to  shut  up  every  avcuuc  through  which  corruptiou 
or  the  influence  of  fricndsliip  could  possibly  make  an  ap- 
proach to  the  jury-box."  ^ 

§  37G.  Otliei'Avisc  in  Case  of  unusual  Civilities,  such  as 
excite  Suspicion. —  But  where  the  civilities  are  so  unusual, 
or  so  frequent  as  to  cast  suspicion  on  the  verdict,  the  case 
is  different.  Accordingly,  where  it  did  not  definitely  ap- 
pear that  there  were  private  conversations  with  the  jurors 
on  the  subject  of  the  case ;  but  it  did  appear  that  unusual 
civilities  and  attentions  were  paid  to  several  of  them  ;  that 
they  were  treated  more  than  once  ;  that  this  Avas  done  in 
such  a  manner  and  under  such  circumstances  as  to  render 
it  in  the  highest  degree  probable  that  it  was  not  inadver- 
tent and  onl}''  so  far  as  called  for  by  the  ordinary  proprie- 
ties of  life,  but  for  the  purpose  of  influencing  their  verdict, 
—  it  was  held  sufficient  ground  for  a  new  trial.^  So,  where 
a  party  to  a  suit  sought  a  juror  and  attempted  to  impress 
his  mind  with  the  justice  of  his  claim,  and  did,  during  the 
session  of  the  court  at  Avhich  his  action  was  tried,  carry  him 
to  the  house  of  a  friend,  where  he  was  gratuitously  pro- 
vided with  refreshment  and  lodging,  the  verdict  was  set 
aside,  although  it  might  have  been  right  on  the  merits.^  So, 
wdiero,  during  a  recess  in  the  trial  of  a  cause,  one  of  the 
jjarties  took  all  the  jurors,  the  opposite  party,  and  the  wit- 
nesses, into  a  saloon  and  treated  them,  and,  after  the  cause 
had  been  given  to  the  jury,  and  when  they  were  retiring  to 
•consider  of  their  verdict,  passed  down  the  back  way  with 
some  of  them  into  a  saloon,  and  again  treated  them, —  this 
was  held  such  misconduct  as  tended  to  corrupt  the  channels 
of  justice,  and  the  verdict  w^as  set  aside* 

§  377.  Nor  to  Cases  Avhero  Kefreslinients  were  fur- 
nished by  the  Unsuccessful  Party. —  If  L  am  a  litigant  and 
gain  a  verdict,  it  is  no  ground  for   setting  it  aside  that  the 

^  Springer  v.  State,  supra.     But  see.  contra,  Ford  v.  Holmes,  Gl  Ga.  419. 
-  Phillipsburg  Bank  v.  Fulmer,  31  N.  J.  L.  53,  57. 
•"  Cottle  V.  Cottle.  G  ]Sle.  140. 

^Sexton  V.  I.elicvrre.  4  Coldw.  11    (distinguishing  Vaughau  v.  Dot- 
soH,   2  Swan,  348)  ;  antg,  §  348,  subsec.  3. 


§  378.]  USE  or  intoxicating  liquors  by  the  jury.  457 

opposite  party  tampered  with  tlie  jury  and  endeavored  to 
corrupt  them  ;  for  this  would  make  me  a  sufferer  for  his 
wrong.  Putting  it  in  another  way,  if  the  unsuccessful 
party  has  tampered  w^th  the  jury,  or  attempted  to  corrupt 
them,  he  should  not  be  heard  to  urge  his  own  wrong  as  a 
reason  why  he  should  have  a  new  trial.  If,  therefore,  the 
mere  fact  that  the  jury  had  refreshment  while  deliberating, 
is  no  o-round  for  a  new  trial,  still  less  is  it  a  ojround  that 
they  had  refreshments  at  the  instance  of  the  party  against 
whom  their  verdict  was  rendered.  And  it  has  been  so  held,^ 
and  is  very  old  law.- 

§  378.  Use  of  Intoxicating  Liquors  by  tlie  Jnry. —  (1.) 
In  some  Jurisdictions  vitiates  the  Verdict. —  The  courts 
have  been  divided  in  opinion  upon  the  question,  whether  the 
mere  fact  that  the  jury  drink  intoxicating  liquors  during  the 
trial,  or  in  their  room  while  deliberating  upon  their  verdict, 
is  a  good  o-round  for  a  new  trial.  Some  courts  have  held 
that  the  use  of  such  liquors  in  quantities  however  small, 
without  leave  of  the  court,  will  be  good  ground  for  setting 
aside  the  verdict,  without  inquiry  as  to  what  effect  it  had 
upon  the  jurors  who  drank  it  ;^  and  this  rule  has  been  ap- 
plied in  civil  as  well  as  criminal  cases.* 

^  State  V.  Sparrow,  3  Murph.  487. 

2  Thus,  it  is  laid  down  by  Lord  Hale:  "If  any  of  the  jury  eat  or 
drink  without  license  of  the  court  before  they  have  given  up  their  ver- 
dict, they  are  finable  for  it.  But  tliough  it  be  not  at  the  charges  of  either 
part}',  anciently  it  was  held  it  would  avoid  the  verdict.  But  at  this  day 
the  law  is  settled  that  it  is  onlj'  a  misdemeanor,  finable  in  them  that  do 
it.  but  avoids  not  the  verdict.  But  if  it  be  at  the  charge,  for  the 
pui-pose  of  the  prisoner,  and  the  verdict  find  him  guilty,  the  ver- 
dict is  good;  but  if  they  find  him  not  guilty,  and  this  appears,  etc. 
tlie  verdict  shall  be  sot  aside,  and  a  new  trial  awarded."  2  Hale  P.  C. 
30G.  So  it  is  laid  down  in  Viner's  Abridgment  that  if  a  jury  eat  and 
driiilv  at  the  costs  of  a  party,  after  they  are  gone  from  the  bar,  and  be- 
fore they  are  agreed,  their  verdict  shall  not  be  received,  if  the  verdict  be 
for  the  same  party  that  gave  the  meat  and  drink;  for  this  induces  affec- 
tion; but  if  against  him,  the  verdict  is  good.  21  Vin.  Abr.  448,  tit. 
Trial,  G.  g. 

3  People  V.  Douglass,  4  Cowcn,26,  3G;  Jones  v.  State,  13  Tex.  108,  179; 
State  V.  Baldy,  17  Iowa,  39;  State  v.  Bullard,  16  X.  II.  139,  145.  Contra, 
Gilmanton  v.  Ham, 38  N.  H.  108,  114. 

*  Leighton  v.  Sargent,  31  N.  II.  120,  137;    Gregg  v.  McDaniel,  4  Ilarr. 


458  EATING  AND  DRINKING.  [CH.  XVIII 

(2.)  The  General  Hale  otherwise. —  But  the  courts  gen- 
erally have  adopted  the  more  reasonable  rule,  that  the  fact 
that  members  of  a  jury  did,  during  the  trial  of  a  cause,  or 
while  deliberating  on  their  verdict ,  drink  Intoxicating  liquors, 
will  not  be  ground  for  a  new  tri.ii,  unless  there  is  some  rea- 
son to  suppose  that  such  liquors  were  drunk  at  such  time,^ 
or  in  such  qu.nititics  as  to  unfit  t'.iem  for  the  performance  of 
their  duties  ;  unless  they  were  furnished  by  the  party  in 
whose  favor  the  verdict  was  afterwards  rendered  ;  ^  at  least 
unless  the  circumstances  were  suc-h  as  to  create  a  reasonable 
suspicion  that  the  drinking  may  have  inq)ropcrly  influenced 
the  verdict.'^ 

(Del.)  3G7;  Bilant  v.  Fowler,  7  Cowen,  562  (overruled  in  Wilson  v. 
Abrahams,  1  Hill,  207) ;  Kyan  v.  Harrow,  27  Iowa,  494.  Contra,  Wil- 
liamson V.  Reddish,  45  Iowa,  5.50;  Van  Buskirk  v.  Daugherty,  44  Iowa, 
42.  The  rule  which  exacts,  on  the  part  of  jurors,  eutire  abstinence 
fiom  intoxicating  liquors,  is  founded  priucipally  on  the  reason  that  such 
a  rule  is  a  rule  of  absolute  safety,  and  that  any  departure  from  it  is  at- 
tended Willi  danger.  The  arguments  in  its  favor  have  been  well 
expressed  by  Beck,  J.,  in  the  leading  ease  on  the  subject,  in  Iowa 
(Ryan  v.  Harrow,  supra),  though  subsequentlj'^  the  same  court  regarded 
this  case  as  going  as  far  as  the  rule  could  be  extended.  Van  Buskirk  v. 
Daughertj^  supra. 

1  See  Fairchild  v.  Siiydor,  43  Iowa.  23,  where  the  liquors  were  drank  by 
a  juror  at  niijht  pending  the  trial. 

2  Com.  V.  Roby,  12  Pick.  49G,  517;  AVilson  v.  Abrahams,  1  Hill.  207; 
Pclham  V.  Page,  6  Ark.  535,  530;  State  v.  Upton,  20  Mo.  307;  Coleman 
V.  Moody,  4  Hen.  &  M.  1:  Redaiond  v.  Royal  Ins.  Co.,  7  Phila.  167; 
Tripp  V.  County  Commissioners,  2  Allen,  556;  Russell  v.  State,  53  Miss. 
367,  382;  Pope  v.  State,  36  Miss.  121,  136;  Roman  v.  State,  41  Wis.  312, 
316:  Kee  v.  State,  28  Ark.  155,  165;  Perry  v.  Bailey,  12  Kan.  539,  546; 
Larimer  v.  Kelly,  13  Kan.  7S;  Westmoreland  v.  State,  45  Ga.  225,  2S2; 
State  V.  Sparrow,  3  Murpli.487;  Davis  v.  People,  10  111.  74,  77;  Purinton 
V.  Humphreys,  6  Me.  370;  State  v.  Jones,  7  Nev.  408,  414 :  Richardson  v. 
Jones,  1  Nev.  405;  State  v.  Caultield,  23  La.  An.  148;  Stone  v.  State, 
4  Humph.  27;  Rowe  v.  State,  11  Humph.  491;  Thompson  v.  Com.,  8 
Graft.  039,  649;  Vaughan  v.  Dotson,  2  Swan.  348:  (Compare  Sexton  v. 
Lelievrre,  4  Coldw.  11)  ;  McCarty  v.  McCarty,  4  Rich.  L.  594;  Palmore  v. 
State,  29  Ark.  248;  State  v.  West,  69  Mo.  401. 

3  Woodv.  State,  34  Ark.  341;  Roman  v.  State.  41  Wis.  312,  316;  Pitts- 
burgh, etc.  R.  Co.  V.  Porter,  32  Ohio  St.  328;  Tuttle  v.  State,  6  Tex. 
App.  556;  Webb  v.  State.  5  Tex.  App.  500;  Pratt  v.  State,  56  Ind.  179. 
••When,  in  the  course  of  a  trial,  a  juror  has  in  any  way  come  un- 
der  the    inlluence  of   the   i)arty    who  afterwards   has  the   verdict,    or 


§   378.]   USE  OF  INTOXICATING  LIQUOES  BY  THE  JURY.  45i> 

(3.)    Unless  drunk  while  the  J urt/  are  sitting  as  such. — 
It  is  said  by  Oluham,  J.,  in  ti  case  iu  Arkansas,  that  the 

there  is  reason  to  suspect  that  he  has  drunk  so  much,  at  his 
own  expense,  as  to  unlit  him  for  tlie  proper  discharge  of  his 
duty,  or  where  he  lias  so  grossly  misbehaved  himself  in  anj'  other 
respect  as  to  show  that  he  has  no  just  sense  of  the  responsi- 
bility of  his  station,  the  verdict  ought  not  to  stand.  But  every 
irregularity  which  would  subject  the  juror  to  censure,  wliether  iu 
drinking  spirituous  liquor,  separating  from  his  fellows,  or  the  like, 
should  not  overturn  the  verdict,  unless  thei-e  be  some  reason  to  suspect 
that  the  irregularity  may  have  had  an  influence  on  tlie  tinal  result." 
Bronson,  J.,  in  Wilson  v.  Abrahams,  1  Hill.  207.  Ou  the  other  hand, 
it  has  been  said  with  less  propriety  that  a  "judge  at  nisi  prius  should 
never  hesitate  to  set  aside  a  verdict  in  a  criminal  case  where  there  is 
even  a  suspicion  that  any  juror  was  in  the  least  affected  by  intox- 
icating liquor  during  the  progress  of  the  trial,  or  the  deliberaion  upon 
the  verdict."  Lewis,  C.  J.,  in  State  v.  Jones,  7  Xev.  408,  414. 
In  an  anonymous  case  in  Dyer  (37.  b.  pi.  45)  the  jury,  having 
agreed  upon  tlieir  vei'dict,  came  back  to  deliver  it  into  court,  wIk'u 
"••  they  saw  Rede.  C.  J.,  going  on  the  way  to  see  an  affray,  and  they 
followed  him,  and  in  going,  they  saw  a  cup  and  drank  out  of  it 
[what  they  drank  does  not  appear] ;  and  for  this  they  were  fined  eaeli 
forty  pence,  and  the  plaintiff  had  judgment  upon  the  verdict,  and  error 
brought  upon  it."  A  note  to  this  case  states  that  in  Michaelmas  Term.  2 
Eliz.,  ic  was  resolved  by  all  the  judges  that  a  man,  after  the  verdict  is 
given,  cannot  move  in  arrest  of  judgment  that  the  jurors  have  eaten  be- 
tween their  departure  from  the  bar  and  the  time  of  their  giving  tlieir  ver- 
dict. In  another  anonymous  case  in  Dyer  (218.  a.  pi.  4.),  which  was  the 
trial  of  a  writ  of  entry,  after  the  court  had  charged  the  jury,  and  they 
had  retired,  they  returned  and  said  that  ''  they  were  all  agreed,  except 
one,  and  he  had  eaten  a  pear  and  drank  a  draught  of  ale,  wherefore  he  would 
not  agree.  At  the  request  of  the  plaintiff,  the  jury  departed  together 
again,  and  found  for  the  plaintiff;  and  the  matter  above  was  examined 
by  the  oath  of  the  jurors  seriatim,  and  the  bailiff  wiio  kept  them,  and 
found  true  as  above;  wherefore  the  offenders  [the  jury  and  the  bailiff] 
were  committed,  and  found  surety  afterwards  again  for  their  fines,  if, 
etc. ;"  but  the  plaintiff  had  liis  judgment  to  recover  damages.  In  another 
old  case  (Duke  of  Eichmond  v.  Wise,l  Vent.  124),  the  jury  drank  wiue 
while  tliey  were  deliberating,  and,  after  they  had  given  up  their  privy 
verdict,  they  were  treated  at  the  tavern  by  the  plaintiff's  solicitor,  before 
tlieir  affirnianee  of  it  in  court.  Tlie  verdict  was  for  the  plaintiff;  and 
"  for  these  misdemeanors"  a  motion  was  made  to  set  it  aside,  but  the 
motion  was  denied.  The  judges  were  agreed  "that  if  the  jury  ate  or 
drank  at  the  charge  of  the  party  for  whom  they  found  their  verdict,  it 
disannuls  their  verdict;  "  "  but  here,"  says  the  report,  '•  it  doth  not  ap- 
pear that  the  wine  they  drank  was  had  by  order  of  the  plaintiff,  or  any 
agent  for  him."    The  fact  that  the  plaintiff's  solicitor  had  treated  them 


460  EATINO  AND  DRINKING.  [CH,  XVIII. 

oiivulutiou  of  spirituous  liquors  among  a  jury,  while  sitting 
us  such,  even  with  consent  of  the  parties,  is  cause  for  re- 
versing the  judujnicnt;^  and  some  of  the  cases  support 
this  doctrine.  Thus,  in  an  old  case  in  New  York,  it  was 
found  by  a  jury  in  the  circuit  court,  that  while  the  cause 

utter  they  liad  luado  up  their  verdict,  but  before  they  delivered  it  in  court. 
<lid  not,  in  the  opinion  of  the  judges,  avoitl  tiieir  findiiij^,  tiiough  it  would 
h:ive  been  otherwise,  if  the  defendant  had  treated  tlieni,  and  they  had 
<?hanged  their  verdict.  In  the  trial  of  the  Seven  Bishops,  after  tlie 
charge  to  the  jiuy,  tiie  following  colloquy  took  place:  The  Lord  Chief 
Justice:  '-Gentlemen  of  the  jury,  have  j^ou  a  mind  to  drink  before  you 
go?''  Jury:  '"Yes,  my  Lord,  if  you  please."  Accordingly  wine  was 
sent  for,  for  the  jury.  See  12  How.  St.  Tr.  429.  In  a  recent  case 
in  the  Common  Pleas  Division,  an  inquisition  of  damages  was  set  aside 
on  the  ground  that  a  champncjne  lunch  had  been  given  the  jury  by  the 
claimant.  A  report  of  the  case  has  not  yet  reached  us.  See  note  in  23 
Alb.  L.  J.  143.  Where,  in  a  case  of  felony,  fom-  or  five  bottles  of  whisk}' 
were  introduced  into  the  jury-room,  and  drunk  bj' the  jurors  to  such  ex- 
cess as  to  produce  hilarit}',  it  was  held  that  the  court  erred  in  refusing  to 
grant  a  new  trial;  and  tlie  judgment  was  reversed.  March  v.  State, 
44  Tex.  65.  It  is  obvious  that  a  just  view  of  this  question  cannot  be 
taken  which  leaves  out  of  view  the  habits  of  the  jurors  themselves. 
There  are  communities  whose  members  abstain  almost  totally  from  the 
use  of  intoxicating  drinks.  Again,  there  are  comnnmitles  whose  mem- 
bers drink  such  liquors  as  a  daily  beverage,  not  only  at  their  meals,  but 
also  at  other  times.  Now,  if  a  person  is  addicted  to  the  use  of  such 
li(luors,  and  is  deprived  of  them  for  a  season,  his  spirits  become  de- 
pressed, and  his  mind  injuriously  affected.  Such  a  person,  deprived  of 
liis accustomed  stimulus,  would  be  apt  to  lean  upon  the  side  of  severity; 
the  life  or  liberty  of  accused  persons  might  not  be  safe  in  his  hands. 
Again,  if  a  person  is  not  accustomed  to  the  use  of  such  liquors,  a  small 
quantitj'  taken  by  him.  has  the  effect  of  exciting  his  emotional  nature, 
giving  undue  buoyancy  to  his  spirits  and  unbalancing  his  judgment.  Such 
a  juror,  so  iulluenced,  would  be  more  apt  to  give  way  so  far  to  a  benev- 
olent sentimentalism  than  to  lean  to  the  side  of  severity;  and  the  interests 
of  the  public  migkt  not  be  safe  in  his  hands.  Whether  the  jur}'  box  be 
tilled  by  the  former  or  the  latter  class  of  persons,  to  indulge  them  in  a 
moderate  use  of  ardent  spirits  would  ordinarily  be  of  more  advantage  to 
tlie  prisoner  than  to  the  State.  Any  rule  on  this  subject  ought  to  have 
reference  to  the  habits  of  the  people  in  the  particular  community.  There 
is  no  more  sense  or  propriety  in  restraining  a  jui-or  through  a  protracted 
trial,  from  drinking  wine,  or  even  other  intoxicating  liquors,  at  or  be- 
fore his  meals,  if  such  is  his  babit,  than  in  restraining  the  judge  on  the 
bench  from  doing  the  same  thing.  See  Hogshead  v.  State,  6  Humph. 
59,  where  a  new  tri;il  was  granted  because;  a  juror,  for  want  of  licpior. 
was  threatened  with  a  spasm  of  dciirium  tremens. 
'  Pelham  v.  Page,  G  Ark.  .")35,  538. 


§   378.]   USE  OF  INTOXICATING  LIQUORS  BY  THE  JURY.  461 

was  upon  trial  before  a  justice  of  the  peace,  from  whence 
it  had  been  removed  by  certiorari,  intoxicating  liquors  wei-o 
circulated  among  the  jury,  while  sitting  as  such  ;  that  one 
of  the  jurors  was  ^^  disguised  with  the  liquor"  thus  given 
him,  and  that  the  plaintiff  in  error  objected  to  the  circula- 
tion of  liquor  among  the  jurors  while  thus  sitting.  This 
was  held  a  flagrant  case  of  misbehavior,  and  a  new  trial 
was  granted.^  In  an  earlier  case  in  the  same  State,  it  aj)- 
peared  that  after  the  evidence  on  the  trial  before  a  justice 
of  the  peace  and  a  jury  had  closed,  each  of  the  parties,  by 
permission  of  the  justice,  treated  the  jury  to  a  botthi  of 
whiskey,  in  order,  as  the  return  stated,  "  to  enable  them  to 
listen  to  the  remarks  of  counsel."  The  court  said:  "  In- 
dependent of  the  gross  misconduct  of  the  justice  in  per- 
mitting such  a  use  of  spirituous  liquor  at  the  trial,  for 
which  the  consent  of  parties  affords  no  excuse,  the  verdict 
was  decidedly  wrong  upon  the  evidence;"  and  the  judg- 
ment was  reversed.^  In  another  trial  before  a  justice  of 
the  peace  in  the  same  State,  after  issue  joined,  the  trial 
was,  without  objection,  suspended  two  hours,  to  enal>le 
defendant  to  procure  a  witness.  During  this  time  a  bottle 
of  liquor  was  handed  around,  of  which  the  jurors,  and 
other  persons  in  the  room,  drank.  Nothing  was  drunk  by 
the  jurors  for  an  hour  and  a  half  previous  to  the  com- 
mencement of  the  proceedings.  This  Avas  held  no  ground 
for  a  new  trial.  *'The  jurors,"  said  the  court,  "did  not 
take  the  liquor  while  they  were  sitting  as  a  jury.  It  was 
during  the  two  hours'  suspension  of  proceedings,  which  dis- 
tinguishes this  case  from  that  of  Kellogg  v.  Wilder.  It 
does  not  appear  that  they  drank  to  excess,  or  that  the 
liquor  was  furnished  by  one  party  more  than  the  other."  ^' 
These  cases  bear  out  the  dictum  in  the  Arkansas  case  ;  but 
the  rule  is  of  little  value,  since  cases  tried  by  justices  of 
the  peace,  when  removed  to  higher  courts,  are  now  gene- 


1  Rose  V.  Davis,  4  Cowen,  17. 

2  Kellogg  V.  Wilder,  15  Johns.  455. 

3  Dennison  v.  Collins,  1  Cowen,  111. 


462  EATING  AND  DRINKING.  [CH.  XVIII. 

rally  tried  de  novo  on  their  merits,  and  since  it  is  scarcely 
conceivable  that  a  court  of  record  would  lay  itself  open  to 
the  censure  of  permitting  liquor  to  be  passed  round  among 
the  jurors  during  the  progress  of  a  trial.  Neither  is  the 
rule  one  of  universal  application  ;  for  obviously,  circum- 
stances may  arise  (though  rarely)  making  it  proper  for  the 
judge,  even  without  consent  of  the  parties,  to  permit  jurors 
t:)  partake  of  intoxicating  li(|uor  during  the  progress  of  the 
trial,  for  medical  purposes.^ 

(4.)  Or  unless  the  Drinking  is  attended  loith  other  cir- 
cumstances of  misconduct. —  Where  the  drinking  of  ardent 
spirits  by  a  juror  is  attended  with  other  circumstances  of 
misconduct,  as  where  a  juror  separates  from  his  follows  to 
drink  in  a  bar  room,^or  where,  on  being  interrogated  touch- 
ing his  qualitications  as  a  juror,  he  had  concealed  a  bias 
which  he  entertained  against  the  opposite  party  ;  ^  or,  sepa- 
rating from  his  fellows,  and  while  drinking  makes  remarks 
showing  bias  against  the  unsuccessful  party  ;  *  in  all  such 
cases  the  verdict  will  be  set  aside.'' 

(5.)  Or  v:here  the  Liquor  was  furnished  by  the  Success- 
ful Par  tij  or  J)  is  Counsel. —  Where  intoxicating  liquor  has 
been  drunk  by  a  juror,  but  not  at  such  times  or  in  such 
quantities  as  to  disqualify  him  for  the  proper  discharge  of 
his  duties,  and  there  is  the  additional  element  that  it  was 
furnished  at  the  cost  f)f  the  prevailing  party  or  his  attorney, 
then,  whether  it  will  be  held  ground  for  a  new  trial  be- 
comes a  complex  question.  Those  courts  which  hold  that 
the  drinking  of  intoxicating  liquors  during  a  trial,  or  while 
the  jury  are  deliberating  on  their  verdict  is,  i^er  se,  suflS- 
cient  ground  for  a  new  trial,  will  find  an  additional  reason 
for  so  holding,  where  the  liquor  was  furnished  at  the  cost  of 


1  See,  for  instance,  United  States  v.  Gibert,  2  Sumner,  19,  81. 

2  Creeli  v.  State,  24  Ind.  151;  Davis  v.  State,  35  Ind.  496,  499;  State  v 
Prescott,  7  ]SI.  H.  287,  296;  Jackson  v.  Jackson,  40  Ga.  150. 

3  Ante.  §  302,  p.  342,  note. 

^  JacKSon  V.  Jackson,  40  Ga.  150. 

'  See  also  State  v._Parrant,'lGMinu.  178,  181. 


§   378.]  USE  OF  INTOXICATING  LIQUORS  BY  THE  JURY.  4r)3 

the  prevailing  party. ^  But  those  courts  which  hold  that  the 
mere  fact  that  a  juror  drank  intoxicating  liquor  is  no  ground 
for  a  new  trial,  unless  he  drank  it  in  such  quantities,  at 
such  times,  or  under  such  circumstances  as  to  create  a  sus- 
picion that  it  had  an  improper  influence  upon  the  verdict 
which  was  rendered,  will  treat  the  question  very  much  as 
they  would  if,  instead  of  intoxicating  liquor,  the  juror  had 
received  food  or  other  entertainment  froni  the  prevailing 
party.  The  subject,  in  this  phase  of  it,  was  carefully  con- 
sidered in  a  recent  case  in  the  Supreme  Court  of  Ohio,  and 
the  rule  was  laid  down  that  "  where  it  appears  that  during 
the  progress  of  a  trial,  the  prevailing  party  or  his  counsel 
in  a  case  has  furnished  intoxicating  liquors  to  a  juror,  it  is 
a  2:ood  oTound  for  a  new  trial,  unless  it  is  shown  that  it 
was  not  intended  to  influence  his  action  in  the  cause,  and 
that  it  had  no  inljuence  on  his  mind  as  a  juror."  It  was 
therefore  held  that  the  mere  fact  that,  during  an  adjourn- 
ment of  the  trial  of  a  civil  case,  an  attorney  for  the  pre- 
vailing party  casually  met  a  juror  and  invited  him  to  drink 
ii  glass  of  ale,  the  attorney  paying  for  it,  and  no  conversa- 
tion took  place  about  the  case,  was  no  ground  for  reversing 
the  judgment  of  the  court  below  denying  a  new  trial. - 

(6.)  Construction  of  Statutes — Giving  '•'-hy  Way  of 
Treat.^''  —  So  jealous  have  been  some  of  the  legislatures  of 
improper  interferences  with  jurors,  that  there  are  to  be 
found  in  some  of  the  States,  statutes  which  substantially 
re-enact  the  rule  of  the  common  law  which  we  are  consid- 
ering. One  of  these,  in  Vermont,  provides  that  "if  any 
party  obtaining  a  verdict  in  his  favor  in  any  court,  shall, 
during  the  term  of  said  court  in  which  said  verdict  is  ob- 
tained, give  to  any  one  of  the  jurors  in  such  cause,  know- 
ing him  to  be  such,  any  victuals  or  drink,  or  procure  the 
same  to  be  done,  by  way  of  treat,  either  before  or  after 
such  verdict,  on  due  proof  thereof  being  made,  it  shall  be 
sufficient  reason  to  set   aside  the  verdict   and  award   a  new 


^  Sacramento,  etc..  Mining  Co.  v.  Shower.-;,  6  Nev.  291. 
^  Pittsburgh,  etc.  K.  Co.  v.  Porter,  32  Ohio  St.  328. 


4<!4  EATING  AND  DRINKING.  [CH.  XVIII. 

trial  in  such  cause."  '  It  is  held,  construing  this  statute,  thai 
the  giving  of  victuals  and  drink  ])y  way  of  treat,  is  some- 
thing distinct  from  the  ordinary  exercise  of  friendly  hosj)!- 
tality,  and  that  the  statute  was  not  intended  to  forbid  such 
acts  of  hospitality  in  the  intercourse  of  friends  as  would 
he  general  and  ordinary  ;  but  that  it  was  designed  to  apply 
to  sometiiing  of  a  different  character  ;  —  to  an  entertainment 
or  treat,  which  suggests  the  idea  of  convivial  enjoyments 
and  feUowship,  rather  than  the  customary  hospitalities  of 
daily  life.'-  Under  a  similar  statute  it  was  held  in  Massa- 
cimsetts  that  the  act  of  the  officer  having  the  jury  in 
charge  in  the  house  of  the  petitioner,  whither  they  had 
gone  to  assess  damages  upon  the  laying  out  of  a  road,  in 
furnishing  them  with  a  pitcher  of  cider,  belonging  to,  but 
without  the  knowledge  of  the  petitioner,  was  not  a  giving 
by  way  of  treat  such  as  the  statute  contemplated.' 

(7.)  TJie  Correct  Rule  suggested. —  Wg  apprehend  that 
the  correct  rule  will  be  found  embodied  in  the  following 
propositions  : 

1.  The  mere  fact  that  a  jury,  pending  the  trial,  or  while 
deliberating  on  the  verdict,  drink  intoxicating  liquor,  with- 
out more,  will  not  be  sufficient  ground  for  a  new  trial. 

2.  It  is  no  ground  for  a  new  trial  that  a  juror  drank  a 
small  quantity  of  liquor  for  medicinal  purposes  while  suffer- 
ing from  real  sickness,  the  quantity  (M)nsumcd  not  being- 
sufficient  to  produce  intoxication.'' 

3.  Where  the  drinking  of  ardent  spirits  by  a  juror  is  at- 
tended with  other  improper  conduct,  as  where  a  juror  sep- 
arates from  his  fellows  to  drink  in  a  l)ar  room,  or  where 
ardent  spirits  are  conveyed  to  him  by  one  of  the  parties, 
a  new  trial  will  be  granted.' 

4.  A  new  trial  will  generally  be  granted  where  a  juror 

ciats  or  drinks  at  the  expense  of  the  successful  party.*' 

>  Gen.  Stats.  Vt.  p.  :{;J2,  §  IG;  Rev.  L.  Vt.  1880,  §  997. 
2  Carlisle  v.  Sheldon,  38  Vt.  440,  44.'). 
^  Tripp  V.  Coinnii.«sioners,  2  Allen,  550. 

■•  Williamson  V.  Reddish,  45  Iowa,  550;  Pope  v.  State,  3G  Miss.  121. 
■'  Studley  v.  Hall,  22  Me.  198. 

epelhamv.  Pao^e,  6  Ark.  535,538,  per  Oldham,  J.;  Studley  v.  Hall, 
22  Me.  198. 


§   379.]  RECEIVING  GRATUITIES.  465 

5.  The  jealousy  of  the  courts  that  juries  should  not  be 
subjected  to  any  improper  influences,  is  such  that  if  it  ap- 
pear that  intoxicating  liquors  have  been  introduced  into  the 
jury  room,  in  a  manner,  or  in  quantities,  which  the  afiidavits 
leave  unexplained,  there  is  a  presumption  that  the  jury  were 
improperly  influenced  thereby,  and  a  new  trial  will  be 
granted.^ 

6.  Consent  of  counsel,  or  of  the  party,  as  elsewhere 
shown,  will  generally  estop  a  party  in  a  civil  case  from 
urging  as  ground  for  a  new  trial,  that  the  jurors  indulged  in 
ardent  spirits,  unless  abuse  is  shown  to  have  resulted  from 
such  indulgence;^  but  not,  it  would  seem,  in  cases  of  fel- 
ony.^ 

§  379.  Receiving'  Gratuities  —  Fees  of  a  Juror  who  is 
also  a  Witness. —  "A  juror  may  always  be  a  witness  for 
either  party  and  still  retain  his  seat  as  a  juror;  and  a  wit- 
ness may  be  a  legal  juror."  "*  And  where  a  person  was 
legally  summoned  as  a  witness  for  the  plaintiff  in  a  suit, 
after  he  had  been  drawn  as  a  juror,  but  it  did  not  appear 
that  the  plaintiff  knew  that  he  had  been  drawn  as  a  juror, 
although  he  knew  it  at  the  first  day  of  court ;  and  when 
called  as  a  juror  in  the  plaintiff's  case,  he  made  a  statement 
in  open  court  that  he  had  been  summoned  as  a  witness  to 
testify  as  to  the  character  of  a  witness  for  the  defendant, 
and  asked  to  be  excused  on  this  ground,  and  stated  at  the 
same  time,  that  he  knew  nothing  of  the  case ;  the  fact  that 
he  afterwards  claimed  and  received  his  fees  as  a  witness  so 
long  as  to  include  some  portion  of  the  time  while  he  was 
thus  sitting  as  a  juror,  did  not,  in  the  absence  of  any  circum- 
stances making  it  appear  that  he  or  the  plaintiff  knew  it  to 
be  incorrect,  afford  ground  for  a  new  trial ;  nor  was  it  re- 
ceiving a  gratuity  within  the  meaning  of  a  criminal  statute.® 

1  Pope  V.  State,  36  Miss.  121. 

^Ante,  §  339;  Salter  v.  Glenn,  42  Ga.  64. 

3  Palinore  v.  State,  29  Ark.  248. 

<  Fellows'  Case,  5  Me.  333.     But  see  ante,  §  216. 

*  Handly  v.  McCall,  30  Me.  9,  16. 

(30) 


4G(5  BOOKS  AND  PAPEKS  IN  THE  JURY-KOOM.      [CH,   XIX. 


CHAPTER   XIX. 


OF    BOOKS    AND    PAPERS    IN    THE    JURY-ROOM. 

SECTION. 

3S1.     Distinction  in  the  old  Law  as  to  Exemplifications  under  Seal 
and  Sworn  Copies. 

382.  Tiie  Fallacy  of  iliis  Distinction  pointed  out. 

383.  Modern  Kule  as  to  Documeuis   which  have  been  received  in 

Evidence. 

(1.)  General  Rule. 

(2.)  Exception  in  Indiana. 

(3.)  Not  Error  to  Refuse  to  send  out  such  Papers. 

(4.)  Record  of  former  Suits  and  Proceedings. 

(5.)  Papers  which  are  written  upon  and  under-scored. 

(6.)  Papers  which  ma}'  be  used  in  proving  Handwriting  by 

Comparison. 
(7.)  Other  Things  which  have  been  used  in  Evidence. 
(8.)  Records  containing  Irrelevant  Matter. 

384.  Papers  vvliich  are  Evidence  on  one  side  only. 

385.  Rule  as  to  Depositions  which  have  been  read  in  Evidence. 

(1.)  In  General  must  not  be  taken  out  by  Jury. 
(2.)  Qualifications  and  Exceptions. 
(3.)  Presumption  when  so  taicen  out. 

(4.)  Rule  where  Parts  of  the  Depo.sition  are  excluded  as 
Evidence. 

386.  Papers  which  have  not  been  received  in  Evidence. 

(1.)  The  General  Rule. 

(2.)  Exceptions  in  Cases  of  Bills  of  Particnlars,  State- 
ments of  Claim,  Computations,  etc. 

(3.)  Exception  where  the  paper  is  Immaterial  or  not 
Prejudicial. 

(4.)  How  far  discretionary  with  the  Trial  Court. 

387.  Pleadings  and  Process. 
-388.    Written  Instructions. 
4i89.    Judge's  Minutes. 

390.    Juror's  Notes  of  the  Testimony. 
301.     Eaw  Books. 

(1.)  Must  not  be  taken  out  by  .Jury. 


§   381.]        SEALED  IXSTRUMENTS  AND  SWORN  COPIES.  467 

(2.)  la  Civil  Cases. 

(3.)  Rule  how  far  controlled  by  Judicial  Discretioa. 

(4.)  What  if  taken  out  Secretly. 
3S>2.     Scientific  Books  —  Dictionaries — Directories. 
i}93.     Rule  where  the  Paper  has  been  improperly  handed  to  the  Jury. 

(1.)  B}^  the  prevailing  Party  or  his  Counsel. 

(2.)  By  Counsel  for  the  losing  Party. 
■394.    What  if  the  Paper  was  not  in  fact  read  by  the  Jury. 

395.  Presumption  that  it  was  read. 

396.  But  the  contrary  may  be  shown  by  the  AfHdavits  of  Jurors. 

397.  Such  Affidavits  not  received  to  show  that  the  Papers  had  no 

Improper  Influence  on  them. 

398.  What  if  Counsel  do  not  properly  object. 

399.  Where  the  Court  has  instructed  the  Jury  to  disregard  the  Paper. 

400.  Such  Error  taken  Advantage  of  how. 

401.  Recalling  the  Jury  and  delivering  Papers  to  them. 

402.  Rules  under  particular  American  Statutes, 

(1.)  In  Civil  Cases. 
(2.)  In  Criminal  Cases. 


§  381.  Distinction  in  the  Old  Law  as  to  Exemplifica- 
tions under  Seal  and  Sworn  Copies. —  With  respect  to 
papers  which  might  be  taken  to  the  jury  room,  the  old  law, 
it  seems,  made  a  difference  between  exemplitications  of 
papers  under  seal  and  sworn  copies.  The  former  were 
of  so  much  higher  authority  as  evidence  than  the  latter, 
that  the  former  were  permitted  to  be  taken  out  by  the 
jury,  while  the  latter  were  not.  The  rule  was,  that  "  exem- 
plifications and  instruments  ^Moe  sibi  ipsa  faciant  fidem,^^ 
were  to  l^e  delivered  to  the  jury  to  take  out  with  them, 
while  in  the  case  of  instruments  of  lesser  dignity,  this  was 
not  so  ;  and  the  reason  of  the  rule  is  thus  given  by  Baron 
Gilbert,  in  his  work  on  Evidence  :^  "  These  exemplifications, 
and  all  other  under  seal,  shall  be  delivered  to  the  jury  to 
be  carried  with  them,  but  sworn  copies  shall  not:  for  we 
have  shown  in  'The  Court  of  Chancery,'  that  the  invention  of 
sealing  was  first  advanced  instead  of  coins  themselves,  and 
that  from  thence  it  began  to  be  made  use  of  by  way  of  attes- 
tations ;  and  from  the  example  of  the  King,  it  began  to  be 
used  in  all  the  courts  of  justice  for  the   attestation  of  their 

1  1  Gilb.  Ev.,  Lofffs  Ed.  (1791).  p.  20. 


4f)8  BOOKS  AND  PAPERS  IN  THE  JURY-ROOM.      [CH.  XIX. 

transactions  ;  and  from  the  same  example  it  began  to  be  used 
by  private  lords  of  manors  for  the  authenticating  of  their 
grants,  and  for  tickets  instead  of  j)ieces  of  money.  And  from 
hence  impressions  were  devised  with  distinctions  of  arms  and 
of  families,  and  these  were  perfectly  known  in  the  neigh- 
borhood, and  therefore  are  always  delivered  to  the  view  of 
the  jury  ;  and  the  jury  are  allowed  to  carry  them  away  with 
them  as  the  acts  of  the  most  remarkal)le  solemnity,  that  the 
most  solemn  acts  may  make  the  last  impression.  But  the 
chirograph  of  a  fine,  a  sworn  copy,  or  any  other  writing, 
thouiih  it  may  be  given  in  evidence,  yet  it  shall  not  be  de- 
livered to  the  jury  ;  for  these  have  no  intrinsic  credit  in 
themselves,  and  the  jury  of  themselves  are  not  supposed  to 
take  notice  of  them.  They  have  no  credit  but  what  they 
derive  from  something  else,  viz.,  from  the  oath  of  the  per- 
son who  attests  them,  or  from  some  presumption  in  their 
favor ;  so  that  they  receive  their  credit  from  some  acts  in 
court,  but  do  not  carry  it  along  with  them  ;  and  therefore 
cannot  be  removed  out  of  court  with  the  jury.  But  things 
under  seal  are  supposed  to  have  an  intrinsic  credit  from  the 
impression  of  the  signature,  and  are  supposed  to  be  known 
to  the  jury  in  some  measure,  and  therefore  are  very  con- 
veniently lodged  in  their  possession  to  discern  .of  them. 
But  of  writings  that  are  not  under  seal,  the  jury  can  make 
no  discernment  of  their  own  ;  their  credit  must  totally  arise 
from  some  act  in  court,  and  therefore  they  cannot  be  put 
in  the  power  of  the  jury." 

In  a  more  modern  authority,^  the  rule  is  thus  stated: 
"  The  jury,  after  going  out  of  court,  shall  have  no  evidence 
with  them  but  what  was  shown  to  the  court  as  evidence,, 
nor  that  without  the  direction  of  the  court .^  The  court 
may  permit  them  to  take  with  them  letters  patent  and  deeds 
under  seal,^  and  the  exemplification  of  witnesses  in  chancery, 
if  dead;  but  not  a  writing  without  seal,  unless   by  consent 

iBuller,  N.  P.,7thEd.,30S, 

2  Citing  2  Rol.  Abr.  686,  pi.  2. 

'  Citing  Vicary  v.  Farthing,  M.  1695,  Cro.  Eliz.  411. 


§    382.]    FALLACY  or  THIS  DISTINCTION  POINTED  OUT.  469 

of  parties.^  But  though  the  jury  take  with  them  patents, 
deeds,  etc.,  without  leave  of  the  court,  or  writings  without 
seal,  books,  etc.,  without  consent  of  court,  or  party,  it 
shall  not  avoid  the  verdict,  though  they  be  taken  by  the  de- 
livery of  the  party  for  whom  the  verdict  was  given."  ^ 
These  observations  relate  to  writings  and  books  which  have 
been  admitted  as  evidence.  Further  on,  it  is  stated  that 
*'  if  the  part}'  for  whom  the  verdict  is  given,  or  any  one  for 
liim,  deliver  a  letter  or  any  other  writing,  not  given  in  evi- 
dence, it  shall  avoid  the  verdict."  ' 

This  distinction  l^etween  sealed  and  unsealed  instruments 
runs  through  all  the  old  English  books.*  Writings  or  books, 
which  are  not  under  seal,  cannot  be  delivered  to  the  jurors 
without  the  consent  of  both  parties.^  "Any  paper  under 
seal,  or  not  under  seal,  may  be  given  in  evidence ;  but 
nothing  may  be  delivered  in  evidence  to  a  jury  but  that 
which  is  of  record,  or  under  seal,  but  by  consent."  ^  The 
jury  cannot  carry  any  evidence  fi'om  the  bar  without  the 
consent  of  both  sides,  except  writings  under  hand  and 
seal."  ^  Examining  these  authorities,  Mr.  Justice  Cowen 
said  :  "  The  evidence  of  the  law,  as  it  stands  upon  authority 
and  practice,  seems  to  be  all  one  way,  and  that  is  against 
loading  the  juiy  with  papers  which  they  often  will  not  un- 
derstand, and  sometimes,  perhaps,  cannot  even  read.  As  a 
general  rule  it  seems  much  safer  that  the  contents  should 
be  communicated  to  them  only  b}^  counsel  in  presence  of  the 
court."  « 

§  382.  The  Fallacy  of  tliis  Distinction  pointed  ont. — 
This  distinction,  it  will    be  perceived,  is  wholh'  fallacious. 

1  Citing  Tomliuson  v.  Crooke,  E.  10  Jac.  1;  2  Kol.  Abr.  687,  pi.  3; 
Co.  Litt.  411. 

2  Citing  Graves  v.  Sliort,  M.  159S;  Cro.  Eliz.  616;  Vicaiy  v.  Farthing, 
supra. 

3  Citing  Co.  Litt.  277. 
^21  Vin.  Abr.  449,  pi.  7. 
«21  Vin.  Abr.  372,  pi.  10. 

6  Olive  V.  Guin,  2  Siderfin,  145. 

7  Lord  Feter  v.  Heneage,  12  Mod.  520.   To  the  same  effect  are  Trials 
per  Pais,  297;  2  Hale  P.  C.  306,  307;  21  Vin.  Abr.  448,  pi.  6. 

8  Farmers,  etc.  Bank  v.  Whiufield,  24  Wend.  419,  428. 


470'  BOOKS  AND  rAI'ERS  IN  THE  .TIUY-UOOM.      [CH.  XIX. 

Ill  the  one  c:ise,  the  jury  are  permitted  to  take  the  i)!i[)er  to 
their  room,  heeause  it  is  under  seal  and  [)r()ves  itself.  In 
the  other,  they  arc  not  permitted  to  take  it,  because  it  is 
proved  by  a  witness,  uhoni  they  are  at  liberty  to  believe  or 
disbelieve.  But  suppose  they  believe  the  witness  who  has 
authenticated  the  latter  paper,  is  it  not  then  just  as  impor- 
tant for  them  to  have  it  in  order  to  ascertain  from  an 
inspection  of  it,  its  terms  and  import,  as  to  have  the 
former?  "  I  have  witnessed  the  trial  of  many  causes,"  said 
TiLGHMAN,  C.  J.,  in  a  case  on  this  subject,  "particularly 
of  the  mercantile  kind,  in  which  the  jury  could  not  decide 
without  the  aid  of  unsealed  papers,  causes  which  required 
the  minute  and  laborious  investigation  of  a  variety  of 
books  and  papers,  in  which  long  calculations  were  neces- 
sary^, founded  on  accounts  and  entries.  To  tell  the  jury 
that  they  must  form  their  verdict  on  the  recollection  of  what 
had  passed  at  the  bar,  would  be  imposing  on  them  a  most 
unreasonable  duty.  Under  such  circumstances,  they  could 
do  no  more  than  make  a  vague  guess  at  the  truth,  and  their 
verdict  might  be  an  abuse,  instead  of  a  satisfactory  admin- 
istration of  justice. ^^^  "Can  it  l)e  competent,"  said 
Yeates,  J.,  in  the  same  case,  "to  one  of  the  litigant  par- 
ties to  withdraw  from  the  jurors  the  only  means  of  settling 
the  matters  in  dispute  fairly?  How  can  complicated  ac- 
counts between  merchants  be  adjusted?  How  is  a  question 
of  loss  of  a  policy  of  insurance,  or  those  arising  on  the 
many  commercial  transactions  which  occupy  our  atten- 
tion, to  be  justly  terminated,  unless  the  jurors  in  their  cham- 
bers are  permitted  to  have  ins})ection  of  original  entries,, 
invoices,  bills  of  lading,  letteis  of  correspondence,  receipts, 
etc.  Upon  full  consideration  thereof,  a  true  verdict  must 
necessarily  depend,  and  by  denying  a  jury  the  means  of 
information,  they  are  prevented  from  doing  equal  justice 
between  the  parties."  ^ 

1  Alexander  v.  Jameson,  5  Binn.  238,  241-2. 

^  Pml.,  243.  Other  parts  of  the  same  case,  particularly  the  arji^u- 
ment  of  Crawford  and  Duncan,  of  counsel,  and  also  the  opinion  of  Breck- 
enridge,  J.,  deserve  attention. 


§   383.]  THE  MODERN  RULE.  471 

§  383.  Modern  Rule  as  to  Documents,  etc.,  which  have- 
been  received  in  Evidence. —  (1.)  General  Rule. —  The 
modern  practice  is  believed  to  be  to  send  to  the  jury-room 
all  documents  and  papers,  other  than  depositions,  which 
have  been  received  in  evidence.^  In  the  absence  of  pro- 
hibitory legislation,  it  is  certainly  in  the  discretion  of  the 
judge  to  permit  such  papers  to  be  taken  out  by  the  jury;* 
in  some  States  it  is  provided  by  statute  that  this  may 
be  done  ;  ^  and  ordinarily  a  verdict  will  not  be  set  aside- 
because  this  has  been  done,  unless  prejudice  appears  to* 
have  resulted  from  it.  Thus,  the  fact  that  the  instrument 
sued  on  was  allowed  to  be  takeu  out  by  the  jury  was  held  no> 
ground  for  a  new  trial  where  there  was  no  defensive  evi- 
dence in  the  case.'* 

(2.)  Exception  in  Indiana. —  But  the  American  practice- 
on  this  subject  is  not  entirely  uniform.  The  common  law 
distinction  between  documents  under  seal  and  those  not 
under  seal,  has  been  generally  disregarded  ;  but  in  some 
jurisdictions  it  is  still  held  ground  for  a  new  trial  to  permit 
any  documentary  evidence  to  go  to  the  jury.  This  appears 
to  be  the  rule  in  Indiana.^ 

(3.)  Not  error  to  refuse  to  send  out  such  Pajjers. —  Eveus 
where  the  established  practice  permits   the  judge  to   send 

1  Alexantlei-  v.  Jameson,  5  Biuuey,  238;  Hovey  v.  Thompson,  37  111.- 
538;  Hanger  v.  Imboden,  12  Mo.  85;  State  v.  Tompkins,  71  Mo.  G13; 
Schappner  v.  Second  Ave.  R.  Co.,  55  Barb.  497;  Sliomo  v.  Zeigler^ 
10  Phila.  611;  Mullen  v.  Morris,  2  Pa.  St.  85;  Seibert  v.  Price,  5  Watts 
&  S.  438;  Sholly  v.  Diller,  2  Eawle,  177. 

2  Sanderson  v.  Bowen,  4  Thomp.  &  C.  675;  Porter  v.  Mount,  45  Barb.. 
422,  428. 

3  Humphries  v.  McCraw,  5  Ark.  61 ;  Atkins  v.  State,  16  Ark.  590. 
*  Collins  V.  Frost,  54  Ind.  242. 

5  In  a  late  case  in  that  State  the  court  said  :  "  We  regard  it  as  settled 
law  in  this  State,  that  it  is  error  to  permit,  over  the  objections  and  excep- 
tions of  the  opposite  party,  items  of  documentary  evidence  to  be  takeui 
to  their  consultation  room  by  the  jury.  We  approve  of  this  view  of  the 
law  as  likely  to  be  attended,  in  its  practical  administration,  with  less 
evil  than  would  attend  the  opposite  rule  of  law  on  this  subject." 
Nichols  v.  State,  65  Ind.  512,  521.  See  also  Lotz  v.  Briggs,  50  Ind.  346. 
But  otherwise  under  the  statute  of  1843.  Waltz  v.  Robertson,  7  Blackf. 
499. 


472  BOOKS  AND  PAPERS  IN  THE  JURY-ROOM.      [CH.  XIX. 

out  certain  paper*  with  the  jury,  such  us  documents  which 
have  been  offered  in  evidence,  yet  the  subject  is  so  far  con- 
trolled by  his  discretion  that  he  is  not  bound  to  do  so,^ 
This  being  so,  a  refusal  to  send  out  papers  with  the  jury, 
while  it  may,  in  the  discretion  of  the  judge  who  made  the 
ruling,^  afford  ground  for  a  new  trial,  cannot  be  assigned 
for  error .^  If  application  is  made  to  send  out  all  the  writ- 
ten evidence  taken  in  the  case,  and  sonie  of  it  is  of  a  nature 
which  ought  not  to  go  to  the  jury  under  the  prevailing 
rules  of  practice,  such  as  depositions,  it  will  not  be  held 
error  to  refuse  the  application,  although  some  of  it,  such  as 
deeds,  might  properly  have  been  sent  out/ 

(4.)  Htcord  of  former  iSuits  and  Proceedings. —  In 
Indiana  it  has  been  held  erroneous  to  permit  the  jury,  even 
at  their  request,  against  the  objection  of  a  party,  to  take 
with  them  when  about  to  retire  to  consider  of  their  verdict, 
papers  which  have  been  introduced  in  evidence,  constituting 
the  record  in  another  action.^  In  a  case  in  Illinois  a  record 
in  a  former  suit  founded  on  a  note  given  for  the  same  prop- 
erty, and  at  the  same  time,  as  the  note  sued  on  in  the  par- 
ticular case,  was  read  in  evidence  by  consent  of  parties. 
Into  the  record  as  thus  used,  was  copied  a  bill  of  excep- 
tions, from  which  the  party  against  whom  the  verdict  was 
rendered,  read  to  the  jury.     It  was  held   no  error  for  the 

1  State  V.  Pike,  20  N.  H.  346;  Sholly  v.  Diller,  2  Eawle,  177. 

2  A  new  trial  was  granted  hy  Sliarswood,  P.  J.,  for  this  reason  in  Car- 
son V.  Watson,  4  Phila.  88.  In  Little  Schuylkill  Nav.  Co.  v.  Richards, 
57  Pa.  St.  142,  it  was  said  that  as  a  general  rule  the  sending  out  of 
papers  with  the  jury  (meaning  papers  otlier  tlian  depositions),  is  regu- 
lated bj^  the  sound  discretion  of  the  court. 

3  Spence  v.  Spence,  4  Watts,  16"),  108;  Ilaniilton  v.  Glenn,  1  Pa.  St. 
340;  0"Hara  v.  Richardson,  40  Pa.  St.  385,  389;  McCully  v.  Barr, 
17  Serg.  &  E.  445,  452.  Compare  Hcndel  v.  Berks,  etc.  Tp.  Road, 
10  Serg.  &  R.  92;  Riddlesburg  Iron  &  Coal  Co.  v.  Rogers,  65  Pa.  St. 
410;  Post  V.  Gazlay.  1  Cin.  Sup.  Ct.  105;  Stltes  v.  McKibl)en,  2  Ohio  St. 
588. 

4  Negro  Jerry  v.  Townsliend,  9  Md.  145,  1.59.  In  Riddlesbu<g,  etc. 
Co.  V.  Rogers,  05  Pa.  St.  416,  it  is  said  that  all  title  deeds  and  papers 
used  in  evidence  must  be  sent  out  witli  tlie  jurv,  unless  there  is  some 
voiy  special  reason  why  it  should  not  be  done. 

5  Lotz  v.  Briggs,  50  Ind.  346,  348. 


§   383.]  ILLUSTRATIONS.  473 

judge  to  allow  this  record  to  be  taken  by  the  jury  on  their 
retirement.  "  The  statements  of  witnesses  upon  another 
trial,  as  contained  in  the  record,"  said  the  court,  "  were  not 
evidence  without  the  consent  of  the  parties.  Consent  that 
they  might  be  read  to  the  jury  did  not  assimilate  the  record 
to  a  deposition.  It  was  introduced  by  agreement,  and  con- 
tained more  evidence  in  favor  of  the  apjiellants  than  against 
them.  We  cannot  regard  it  as  a  paper  excluded  by  force  of 
the  statute  from  the  jury,  or  by  virtue  of  the  decision  in 
Rawson  v.  Curtiss}  It  was  not  a  deposition  read  in  evidence 
without  the  assent  of  the  opposite  party,  but  a  statement  of 
the  pleadings  and  testimony  in  another  suit,  admitted  by  mu- 
tual acquiescence.  We  can  j^erceive  no  injury  which  could 
have  possibly  resulted  to  appellants  in  permitting  the  jury 
to  take  the  record,  and  do  not  think  it  was  error."  '^  In  a 
case  in  Maine  it  was  held,  on  more  doubtful  grounds,  that 
the  mere  fact  that  the  verdict  of  the  jury  on  a  former  trial 
gets  accidentally  into  the  hands  of  the  jury  with  the 
papers,  but  not  through  any  fraud  or  design,  is  no  ground 
for  a  new  trial. ^  But  where,  in  the  same  State,  one  of  the 
jurors  called  upon  the  defendant,  asked  for,  and  received 
and  read  in  part,  a  printed  c{)})y  of  the  evidence  adduced  at 
a  former  trial  of  the  cause,  and  formed  conclusions  there- 
from unfavorable  to  the  losing  party,  a  new  trial  was 
o-ranted.* 

(5.)  Papers  wl licit  are  lorilten  tipon  and  under-scored. — 
If  letters  or  other  papers  which  have  been  offered  in  evi- 
dence have  been  under-scored  for  the  purpose  of  drawing 
attention  to  special  portions  of  them,  and,  in  this  condition, 
are  passed  to  the  jur\'  without  the  knowledge  of  the  op- 
posing counsel  or  the  court,  or  if  the}^  are  sent  to  the  jury 
by  the  order  of  the  court  after  its  attention  has  been  called 
to  the  writing  and  marks  upon  them,  and  after  objection 
duly  and  properly  made,  it  will  be  cause  for  a  new  trial. 

119  111.456. 

2  O'Neall  V.  Calhoun.  67  111.  219. 

3  Harriman  v.  Wilkins,  20  Me.  93. 
■*  Heffron  v.  Gallupe,  55  Me.  563. 


474  BOOKS  AND  PAPERS  IN  THE  JURY-ROOM.      [CH.  XIX. 

But  if  tlic  umrk.s  aiul  uiidor-scoiiiiLr  on  the  papers  arc  known 
to  the  opposing  counsel,  and  arc  nevertheless  passed  to  the 
jury  without  objection  from  him,  he  cannot  have  a  new 
trial  upon  this  ground.^ 

(6.  Papers  whidi  maijhc  uned  in  proving  Handwriting 
by  Comparison  ought,  it  w  )uld  seem,  to  go  to  the  jury 
room.  It  has  been  so  held  by  the  Supreme  Court  of  New 
York,  in  a  case  where  the  particular  papers  had  been  re- 
ceived in  evidence  for  another  })ur[)()sc.''^  But  in  a  case  in 
Illinois  it  was  held  no  error  to  refuse  to  permit  the  jury  on 
their  retiring  to  take  with  them  a  hotel  register  which  had 
been  used  in  evidence  for  this  purpose  by  consent.  It  was 
not  a  paper  read  in  evidence  within  the  meaning  of  the 
statute  of  Illinois,  and  the  decisions  of  the  Supreme  Court 
of  that  State  ^  In  South  Carolina,  where  a  witness  com- 
pared pa[)crs  before  the  jury  on  a  question  of  handwriting, 
it  was  held  no  error  for  the  judge  to  refuse  permission  for 
the  jury  to  take  them  to  the  jury  room  :  it  was  said  to  be 
purely  a  matter  of  discretion  with  him  whether  to  do  so  or 
not.*  In  Indiana  it  was  held  error  to  permit  the  instru- 
ment sued  on  to  be  taken  out  by  the  jurj^  for  the  purpose 
of  examination,  where  its  genuineness  was  in  contest.^  The 
same  view  ol)tains  in  Michio:an.  It  is  there  said  that  where 
the  genuineness  of  a  document  is  in  dispute,  it  would  be 
hazardous  to  permit  the  jury  to  take  the  document  to  their 
room  for  the  purpose  of  comparing  the  handwriting  of  the 
body  of  it  with  that  of  the  signature,  to  aid  them  in  deter- 

1  Watson  V.  Walker,  2.3  IST.  H.  472,  497. 

2  Hardy  v.  Norton,  66  Barb.  527,  536.  The  rule  on  the  proving  of 
handwriting  by  comparison,  seems  to  be  this:  On  a  question  as  to  the 
genuineness  of  handwriting,  the  jury  may  compare  the  document  with 
authenticated  writings  of  tlie  person  to  whom  it  is  ascribed,  if  such 
writings  ai-e  in  evidence  for  other  purposes  of  tlie  cause;  but  not  other- 
wise. Perry  v.  Newton,  5  Ad.  &  El.  514;  Griffits  v.  Ivery,  11  Ad.  & 
El.  322;  Van  Wyck  v.  Mcintosh,  14  N.  Y.  439;  Vinton  v.  Peck,  14  Mich. 
287;  State  v.  Clinton,  67  Mo.  380;  State  v.  Scott,  45  Mo.  302;  State  v. 
Tompkins,  71  Mo.  613;  Howell  v.  Hartford  Fire  Ins.  Co.,  6  Biss.  163. 

3  Cox  V.  Straisser,  62  111.  383. 

*  Means  v.  Means,  7  Rich.  L.  533. 

^  Cliance  v.  Indianapolis,  etc.  R.  Co.,  32  Ind.  472. 


§   383.]  ILLUSTRATIONS.  475 

milling  whether  it  was  a  forgery.  It  is  supposed  thtit  it 
would  have  the  effect  of  converting  non-expert  jurors  into 
expert  witnesses,  and  would  produce  the  evils  which  would 
flow  from  allowing  jurors  to  give  testimony  in  the  jury- 
room.^  In  a  criminal  prosecution  in  Missouri  for  passing  a 
forged  bank-check,  where  the  signature  and  instrument 
were  positively  proved,  and  no  other  papers  were  introduced 
in  evidence  for  the  purpose  of  admitting  testimony  by  com- 
parison, it  was  held  competent  to  submit  the  whole  paper 
to  the  jury  with  or  without  the  aid  of  experts,  for  them  to 
form  their  own  conclusions  as  to  whether  the  whole  instru- 
ment was  produced  by  one  and  the  same  hand.'^  In  a  case 
in  the  United  States  Circuit  Court  in  Illinois,  it  was  held 
that  although  the  case  was  a  proper  one  for  proof  of 
the  handwriting  by  comparison,  3^et  the  comparison  ought 
to  be  nuide  in  open  court,  and  that  it  was  not  ground  for  a 
new  trial  for  the  court  to  refuse  to  allow  the  jury  to  take 
out  the  papers  for  that  purpose.  The  reason  which  the 
court  gave  for  this  ruling  was,  that  where  the  comparison  is 
made  in  open  court,  the  counsel  and  court  have  the  oppor- 
tunity to  point  out  any  resemblance  or  want  of  resemblance 
ill  the  two  writings,  and  of  calling  the  attention  of 
the  jury  to  such  facts  with  regard  to  the  writings  as 
bear  upon  the  question  of  the  genuineness  of  the  paper  in 
question.^ 

(7.)  Other  ihi7igs  ivhich  have  been  used  in  Evidence. — 
The  fact  that  a  mechanical  instrument,  a  file,  for  instance, 
which  has  been  used  in  evidence  and  inspected  by  the  juiy, 
is  conveyed  to  the  jury-room  by  the  officer  having  the  jury 
in  charge,  and  while  they  are  deliberating,  is  no  ground  for 
a  new  trial,  it  has  been  held,  even  in  a  case  of  felony,  un- 
less there  is  evidence  that  the  instrument  was  altered  be- 


ii?e  Foster's  Will,  34  Mieh.  21.     But  see  Jessup  v.  Eklritlge,  1  N.  J. 
L.  401. 
^  State  T.  Scott,  45  Mo.  302. 
»  Howell  V.  Hartford  Fire  Tns.  Co.,  6  Biss.  163. 


470  BOOKS  AND  PArERS  IN  THE  JURV-KOOM.      [CII.  XIX. 

tweeii  the  time  when  it  was  inspected  in  court  and  the  time 
when  it  was  sent  to  the  jury.^ 

(8.)  liecords  containing  Irrelevant  Matter. —  It  is  a 
ireneral  rule  that  where  a  document  is  offered  in  evidence, 
tiie  whole  must  go  in.'^  So,  where  one  paper  refers  to 
iinother  for  complement,  the  latter,  unU'Ss  in  the  possession 
of  the  opposite  pai"ty,  or  its  absence  is  otherwise  accounted 
for,  must  l)e  offered  in  evidence  in  order  to  entitle  the 
former  to  admission.^  It  is  not  proposed  to  discuss  the  nature 
of  this  rule.  It  has  been  held  to  a[)ply  to  the  admission 
of  a  judicial  record,  so  that  a  part  of  such  record  cannot 
be  admitted  ;  unless  the  certificate  show  that  it  is  an  entire 
and  complete  record,  it  will  be  excluded.^  When,  therefore, 
the  entire  record  is  produced  and  offered  in  evidence,  under 
this  rule,  the  whole  will  be  allowed  to  go  to  the  jury-room, 
it  has  been  held,  although  portions  of  it  may  be  manifestly 
irrelevant.  So,  although,  by  the  rule  of  the  court,  deposi- 
tions are  not  allowed  to  go  to  the  jury-room,  yet  such  a 
record  will  go  to  their  room  although  it  contain  depositions 
which  relate  to  an  immaterial  matter.^ 

§  384.  Papers  which  are  Evidence  on  one  side  only. — 
Another  ancient  distinction,  which,  however,  does  not  seem 
to  have  much  sense  to  support  it,  was,  that  if  a  paper  was 
taken  out  by  the  jury,  which  was  evidence  on  one  side 
oiil}'",  the  verdict  would  be  set  aside;"  whereas,  if  it  were 
evidence  on  both  sides,  the  verdict  would  stand,  though  the 
iict  of  taking  the  paper  out  was  irregular.^  We  are  not 
€lear  what  the  rule  meant. 

'  People  V.  Page,  1  Idaho,  114;  post^  §  416,  note. 

-'  1  Whavt.  Ev.,  §  619;  2  Id.  §  1103,  et  seg. 

« lb.  §  619. 

•'  Christine  v.  Wiiiteliill,  16  Serg.  &  R.  98;  Hampton  v.  Speckenagle, 
:9  Serg.  &  R.  212,  221.  Compare  Edmiston  v.  Sclnvartz.  i:}  Serg.  &  K. 
13.".;  Voris  V.  Smith,  13  Serg.  &  11.  334;  Harper  v.  Farmers',  etc.  Bank, 
7  Watts.  &  S.  204,  211;  McCormiek  v.  Irsvin,  35  Pa.  St.  Ill ;  Schuylkill, 
•et.-.  R.  Co.  V,  McCreary,  58  Pa.  St.  304. 

5  Shomo  V.  Zeigler,  10  Phila.  611. 

'■  Lady  Joj^'s  Case,  cited  by  Lord  Raymond  in  Rex  v.  Burdett,  1  Ld. 
Raym.  148. 

'  Rex  V.  Bnrdett,  1  Ld.  Raym.  148;  s.  c,  2  Salk.  64."),  pi.  9;  12  Mod. 
111. 


§   385.]  THE  RULE  AS  TO  DEPOSITIONS.  477 

§  385.  Rule  as  to  Depositions  which  have  been  read  in 
Evidence. —  (1-)  I^^  General,  ')nust  not  he  taken  out  hy 
Jury. —  From  what  has  already  been  seen,^  it  appears  that 
it  was  inadmissible,  under  the  ancient  common  law  prac- 
tice, to  allow  depositions  to  be  taken  to  the  jury-room,  al- 
though they  may  have  been  regularly  taken,  and  properly 
read  in  evidence  to  the  jury.  The  American  courts,  for  the 
most  part,  seem  to  have  so  far  relaxed  this  rule  as  to  permit 
depositions  which  have  been  read  in  evidence  to  be  taken 
out  by  the  jury  on  retiring  to  deliberate,  where  all  the  evi- 
dence is  in  writing,  and  so  taken  out."^  But  where  some  of 
the  testimony  is  read  to  the  jury  from  depositions,  and 
some  of  it  is  delivered  to  them  orally  by  witnesses  exam- 
ined at  the  trial,  it  is  not  allowed,  in  some  jurisdictions,  that 
the  depositions  be  taken  to  the  jury-room  ;  and  the  reason 
is,  that  the  witnesses  who  have  been  examined  at  the  liar 
speak  to  the  jury  but  once,  whereas  the  witnesses  whose 
testimony  is  embodied  in  the  depositions,  if  the  latter  are 
allowed  to  be  taken  to  the  jury-room  and  there  read  and  re- 
read by  the  jury,  speak  to  the  jury  more  than  once.^  By 
this  means  testimony  embodied  in  the  depositions  is  likely 
to  acquire  undue  weight  in  the  minds  of  the  jury  ;  the 
party  who  is  able  thus  to  produce  his  testimony,  acquires  an 
advantage  over  the  party  whose  witnesses  attend  at  the 
trial ;  and  a  principle  of  public  policy  which  favors  the 
production  of  witnesses  at  the  trial,  where  they  must  con- 
front each  other,  the  parties,  the  counsel,  the  court,  the 
jury,  and  the  public,  instead  of  allowing  them  to  give  their 
testimony  in  the  privacy  of  a  notary's  office,  is  defeated."* 

^  Ante,  §  381. 

2  Hairgrove  v.  Millington,  8  Kan.  480. 

sHeiulel  v.  Berks,  etc.,  Turnp.  Kd.,  16  Serg.  &  K.  92;  White  v. 
Blsbing,  1  Yeates,  -400;  Alexander  v.  Jameso  i,  5  Binn.  238;  Negro  Jerry 
V.  Townsheiid,  9  Md.  145,  159;  Shields  v.  Guffey,  9  Iowa,  322,  324. 
Contra,  Hurley  v.  State,  29  Ark.  17. 

*  Kavvsou  V.  Curtlss,  19  III.  456,  480.  A  paper  purporting  to  be  the  will 
of  a  person,  proved  as  such  before  the  register  according  to  the  practice 
in  Pennsylvania,  with  the  register's  certiticate  of  probate  indorsed 
thereon,  is  not  so  far  assimilated  to  a  deposition  that  it  is  not  permitted 


478  BOOKS  AND  PAPEHS  IN  THE  JUKY-KOOM.      [CH.  XIX. 

(2.)  Qualijications  and  Exceptions. —  This  rule,  how- 
ever, is  not  an  absolute  one;  it  seems  in  most  cases 
to  yiekl  to  the  sound  discretion  of  the  court. ^  In  Kan- 
sas, it  is  said  that  where  all  the  testimony  adduced  is  in 
writing,  it  will  generally,  though  not  always,  be  sent  to  the 
jury,  and  where  a  part  of  it  only  is  in  writing,  whether  it 
will  be  sent  to  the  jury  is  a  matter  within  the  sound  discre- 
tion of  the  court. '^ 

So,  in  New  York  it  is  held  that  the  fact  that  the  judge 
allowed  dci)()sitions  which  had  been  read  in  evidence  to  go 
to  the  jury-room,  was  not  error, — Mason,  J.,  saying:  "I 
have  examined  with  some  care  the  reports  of  Westminster 
Hall,  as  well  as  of  this  State,  and  have  not  been  able  to 
find  a  case  where  the  courts  have  set  aside  a  verdict  when 
the  jury  have,  by  direction  of  the  court,  been  permitted  to 
take  to  their  room  a  paper  which  had  been  given  in  evi- 
dence in  the  cause.  The  applications  to  the  courts  in  these 
cases  have  been  b}^  way  of  motion  to  set  aside  the  verdict 
for  misconduct  of  the  jury  in  taking  papers  with  them 
to  their  room  without  the  direction  or  leave  of  the  court ; 
and  Mr.  Graham,  in  his  work  on  New  Trials,  thinks  it 
should  be  left  to  the  sound  discretion  of  the  judge  upon  the 
trial."  ^ 

In  Georgia,  a  jury  in  a  civil  case,  after  having  retired  to 
consult  upon  their  verdict,  sent  their  bailiff  to  the  clerk  for 
certain  dei)ositions  which  had  been  read  in  evidence  before 
them.  They  merely  desired  them  to  refresh  their  memory 
jis  to  certain  dates  which  were  not  in  controversy.  The 
court  held  that  while  this  irregularity  was  sufficient  to  have 
called  for  the  punishment  of  the  jury  and  the  bailiff,  yet  it 
was  not  sufficient  ground  for  a  new  trial.  "Whenever  it 
appears,"  said    McDonald,  J.,    "  that  the  evidence,  as  in 

to  go  out  with  the  jury  under  the  rule  before  stated.     Sholly  v.  Diller,  2 
Rawle,  177.     Compare  Otiiiiger  v.  Ottinger,  17  Serg.  &  K.  142. 

1  Whithead  v.  Keys,  3  Allen,  495;  s.  c,  1  Am.  L.  Reg.  (N.  S.)  471; 
Spence  v.  Spence.  4  Watts,  165. 

2  Hairgrove  v.  Millington,  8  Kan.  480;  post,  §  402. 

3  Howland  v.  Willetts,  9  X.  Y.  170,  175,  denying  the  dictum  of  Cowen, 
J.,  in  Farmers'  etc.  Bank  v.  Whinfield,24  Wend.  419;  post,  §  402. 


§   385.]  THE  RULE  AS  TO  DEPOSITIONS.  479 

this  case  (without  the  fraud  or  agency  of  the  party  in  whose 
favor  the  verdict  is  found),  which  was  read  to  the  jury  in 
court,  is  carried  to  the  jury  at  the  instance  of  the  jury 
themselves,  to  refresh  their  memory  in  regard  to  a  mat- 
ter concerning  which  there  is  no  controversy  between  the 
parties,  a  new  trial  should  not,  for  that  cause  alone,  be 
granted."  ^ 

In  Iowa  there  is  a  statute  providing  that  upon  retiring  for 
deliberation  the  jury  may  take  with  them  all  papers,  ex- 
cept depositions,  which  have  been  received  as  evidence  in 
the  cause. ^  Notwithstanding  this  statute,  the  fact  that  a 
deposition  gets  to  the  jury-room  will  not  l)e  ground  for  a 
new  trial,  unless  it  appear  that  it  was  against  the  ol^jection 
of  the  counsel  for  the  party  complaining,  or  that  such  coun- 
sel was  ignorant  of  the  fact,  and  that  the  deposition  was,  in 
fact,  read  by  the  jury,  and  that  the  party  complaining  was 
probably  prejudiced  thereby.^ 

The  rule  in  Ohio  seems  to  be  that  where  the  deposition 
contains  no  objectionable  matter,  it  must  go  to  the  jury,  and 
that  a  refusal  to  allow  it  to  go  to  them,  on  the  application 
of  the  counsel  of  the  successful  party,  will  be  ground  for  a 
new  trial  ;  but  where  it  contains  parts  which  have  been  sup- 
pressed or  excluded,  whether  it  wdll  be  handed  to  the  jury 
will  be  a  matter  of  sound  discretion  for  the  trial  court.* 

(3.)  Presunvptionivhen  so  taken  out. —  But  the  presump- 
tion against  the  verdict  which  obtains  in  a  case  where  the 
deposition  which  was  taken  to  the  jury-room  was  not  offered 
in  evidence,^  does  not  obtain  in  this  case.  Here,  where  the 
deposition  was  read  in  evidence  at  the  trial,  the  court  must 
affirmatively  see  that  the  party  complaining  was,  in  fact, 
prejudiced  by  it.  For  instance,  it  must  appear  that  the 
deposition  was  read  by  the  jury  or  by  some  of  them.  Then 
the  deposition  must  be  in    itself    so  important  that  a  re- 

1  Andrews  v.  Tinsley,  19  Ga.  303. 

2  Post,  §  402,  subsec.  1. 

3  Shields  V.  Giiffey,  9  Iowa,  322. 

*  Stitcs  V.  McKibben,  2  Ohio  St.  588;  Post  v.  Gazlay,  1  Gin.  Sup.  Ct. 
105. 

5  Post,  §  395. 


480  BOOKS  AND  PAPERS  IN  THE  JURY-ROOM.     [CH.  XIX. 

reading  of  it  by  the  jury  would  probably  lead  them  to  lay 
undue  stress  on  the  facts  therein  stated.^  If  it  is  not  clear 
what  influence  the  excluded  })ortions  of  the  depositions  may 
have  had  on  their  minds,  the  same  presumption  arises  as  in 
a  case  where  incom[)etent  testimony  has  been  admitted  dur- 
ing the  trial,  namely,  that  it  influenced  the  verdict  im- 
properly.^ 

(4.)  Rule  where  Parts  of  the  Depositions  are  excluded  as 
Evidence. —  If  the  jury  are  allowed  to  take  to  their  room 
depositions,  some  parts  of  which  have  been  excluded  as 
evidence,  but  which  remain  in  the  manuscript,  so  that  the 
jury  may  read  them,  natural  curiosity  will  prompt  them  to 
read  the  excluded  portions,  and  they  cannot  fail  to  have  an 
improper,  though  perhaps  an  unconscious  influence  on  their 
rainds.  Whatever  the  rule  may  be  as  to  depositions  no 
portions  of  which  have  been  excluded,  it  is  clear  that  depo- 
sitions, portions  of  which  have  been  excluded,  ought  not  to 
be  sent  to  the  jury  room  ;^  for  this  is  placing  before  them 
incompetent  evidence.  The  general  rule,  therefore  is,  that 
such  depositions  are  to  be  excluded  from  the  jury,  and  that 
if  they  are  sent  to  the  jury,  and  if  it  appear  that  the  ex- 
cluded portions  are  of  such  a  character  as  to  have  influenced 
the  minds  of  the  jury  to  the  injury  of  the  party  against 
whom  they  rendered  their  verdict,  a  new  trial  will  be 
granted.* 

^  "Where  the  deposition  thus  taken  to  the  juiy-room  was  brief,  and  it 
did  not  appear  whether  any  of  the  jury  had  read  it  or  not,  and  it  was  of 
such  a  nature  that  any  juror  would  be  likely  to  misunderstand  its  pur- 
port, after  once  hearing  it  read,  it  was  held  that  no  ground  for  a 
new  trial  was'shovvn.      Shields  v.  Guffey,  9  Iowa,  322. 

'  In  such  a  case  the  Supreme  Court  of  New  Hampshire  said  :  "  The 
court  feels  itself  bound,  when  it  has  ordered  improper  testimony  to  be 
struck  from  a  deposition,  to  hold  the  party  to  a  strict  compliance  with 
the  order.  In  this  case,  testimony  which  the  court  had  ordered  to  be 
erased  went  to  the  jury.  What  weight  it  may  have  had  with  them,  we 
cannot  say;  but  we  do  not  feel  ourselves  at  liberty  to  presume  that  it 
could  have  had  no  weight."     Shepherd  v.  Thompson,  4  N.  H.  213,  217. 

3  Wood  V.  Stewart,  7  Vt.  149;  Ilopkinson's  Adm"r.  v.  Steele,  12  Vt. 
582;  Warden  v.  Warden.  22  Vt.  563;  Kent  v.  Tyson,  20  N.  H.  121,  127; 
Foster  v.  McO'Blenis,  18  Mo.  88,  91. 

■*  Rawson  v.  Ciu-tiss,  19  111.  45G,  481.     Some  cases  seem  to  indicate  a 


§   386.]  PAPERS  NOT  RECEIVED  IN  EVIDENCE.  481 

§  386.  Papers  wliicli  have  not  been  received  in  Evi- 
dence.—  (1.)  The  General  Rule  is,  that  if  depositions  or 
other  papers  which  have  not  been  admitted  in  evidence  are 
taken  out  by  the  jury,  when  they  retire  to  consider  of  their 
verdict,  a  new  trial  will  be  granted.^     This  rule  rests  upon 

view  that  in  sucli  cases  prejudice  will  be  conclusively  presumed  (Shep- 
herd V.  Thompson,  4  N.  H.  213) ;  but  the  better  view  is  that  stated  in 
the  text.     Ante^  §  364,  subsec.  12. 

1  Alger  V.  Thompson,  1  Allen,  453 ;  Sheaff  v.  Gray,  2  Yeates,  273 ; 
Munde  v.  Lambie,  125  Mass.  367;  State  v.  Bradley,  6  La.  An.  564,  660; 
Clark  v.  Whitaker,  18  Conn.  543;  Ruckersville  Bank  v.  Hemphill,  7  Ga. 
396;  Stewart  v.  Burlington,  etff.  R.  Co.,  11  Iowa,  62;  State  v.  Lantz,  23 
Kan.  728;  Lawless  v.  Reese,  3  Bibb,  486;  Heffron  v.  Gallupe,  55  Me.  563; 
Neil  V.  Abel,  24  Wend.  185;  O'Brien  v.  Merchants'  Fire  Ins.  Co.,  6  Jones 
&  Sp.  482;  Mitchell  v.  Carter,  14  Hun,  448;  Nolan  v.  Vosburg,  3  Bradw. 
596;  Hutchinson  v.  Decatur,  3  Crauch  C.  C.  291;  Benson  v.  Fish,  6  Me. 
141;  Bronson  v.  Metcalf,  1  Disney,  21;  Coffin  v.  Gephart,  18  Iowa,  256; 
Atkins  V.  State,  16  Ark.  568.  This  rule  is  subject  to  exceptions  hereafter 
stated.  Thus,  the  jury  inadvertently  took  out  the  account  of  the  plaintiff 
without  the  defendant's  consent.  The  plaintiff's  counsel,  before  the  ver- 
dict was  entered,  discovered  the  error  and  requested  that  the  paper  should 
be  withdrawn,  and  the  jury  sent  out  again  with  an  instruction  that  the 
paper  was  not  evidence.  This  motion,  no  one  opposing,  was  granted. 
The  jurj'  again  retired  and  thereafter  rendered  a  verdict  for  a  smaller 
sum.  For  this  irregularity,  on  the  defendant's  motion,  a  new  trial  was 
granted.  Hutchinson  v.  Decatur,  3  Cranch  C.  C.  291.  On  similar  facts  the 
decision  was  the  same  in  Benson  v.  Fish,  6  Me.  141.  But  where  the 
plaintiff's  account,  which  had  been  proved  by  a  witness,  had  been  taken 
out  by  the  jury  by  mistake,  and  withdrawn  a  few  minutes  after  by  re- 
quest of  plaintiff's  counsel,  a  new  trial  was  refused.  Simms  v.  Templeman, 
5  Cranch  C.  C.  163.  So,  although  a  court  ought  not  to  permit  a  state- 
ment of  account  to  go  to  ihe  jury,  which  contains  some  items  of  which 
there  is  no  proof  (Morrison  v.  Moreland,  15  Serg.  &  R.  61)  ;  yet  where 
this  was  done,  the  Supreme  Court,  out  of  extreme  reluctance  to  yield  to 
objections  not  touching  the  merits,  but  of  a  purely  technical  character, 
refused  to  grant  a  new  trial.  Had  there  been  no  proof  of  any  one  of 
the  items,  it  would  have  been  a  fatal  error.  Hall  v.  Rupley,  10  Pa.  St. 
231.  But  where  such  a  paper,  not  in  evidence,  was  delivered  to  the  jury 
by  the  plaintiffs,  without  the  consent  of  the  defendant,  a  new  trial  was 
granted,  solely  on  this  ground,  without  expressing  any  opinion  as  to  the 
merits  of  the  case.  Sheaff  v.  Gray,  2  Yeates,  273.  In  a  case  in  South 
Carolina,  after  the  court  had  committed  the  case  to  the  jury  and  ad- 
journed, instructing  them  to  bring  in  their  verdict  in  the  morning,  they 
sent  by  the  sheriff  for  certain  books  of  the  plaintiff  which  had  been 
used  on  the  trial  and  repeatedly  referred  to  by  a  witness.  This  was 
held  censurable  in  the  slieriff.  but  as  it  appeared  to  have  been  done 

(31) 


482  BOOKS  AND  TAPERS  IX  TIIK  JURY-KOOM.      [cil.  XIX. 

the  same  reason  which  makes  it  error  to  admit  hearsay,  or 
other  incompetent  evidence  at  the  trial.  It  would  be  idle 
to  rule  out  incompetent  documentary  evidence,  if  the  jury 
were  allowed  to  take  it  to  their  room  and  consider  it  while 
making  up  their  verdict.^ 

(2.)  Exceptions  in  Cases  of  Bills  of  Particulars^  /State- 
ments of  Claim,  Computations,  etc. —  The  rule,  however,  is 
not  universal.  Elsewhere^  it  is  shown  that  it  is  always 
permissible  for  the  jury  to  take  the  pleadings  with  them 
when  they  retire.  yu})pose  a  party,  under  the  rules  of  the 
court,  files,  or  uses  on  the  trial,  and  not  as  evidence,  a  bill 
of  particulars,  which  is  nothing  more  than' a  more  extended 
statement  of  his  claim  than  is  permitted  by  the  rules  of 
pleading.  This  paper,  like  the  pleadings  themselves,  may 
be  of  material  aid  to  the  juiy  in  determining  what  the 
claim  of  the  plaintiff  really  is.  Provided  the  jury  are 
made  to  understand  that  they  are  not  to  regard  such  a  paper 
as  evidence  of  anything  which  the  plaintiff  claims,  is  there 
any  more  sense  in  excluding  it  from  them  when  they  retire 
than  there  would  be  in  excluding  the  pleadings?  It  would 
seem  not ;  and  in  accordance  with  this  view,  it  is  always 
customary  in  Pennsylvania  to  permit  parties  to   send  out 

without  any  design  of  unfairness,  a  new  trial  was  refused.  Lott  v. 
Macon,  2  Strobh.  L.  17S,  183.  It  lias  been  held  that  if  a  bill  of  excep- 
tions, allowed  by  the  judge  on  a  former  trial  of  a  cause,  containing  state- 
ments material  to  the  issue,  is  taken  to  the  jury-room,  and  read  by  the 
jury,  or  any  of  them,  it  is  good  ground  for  a  new  trial,  and  no  misconduct 
by  the  prevailing  party  need  be  shown.  Munde  v.  Lanibie,  125  Mass.  3G7. 
So,  on  an  indictment  for  murder,  the  jury  took  out  with  them  the  record 
of  the  coroner's  inquest  and  depositions,  witliout  leave,  or  consent  of 
the  prisoner's  counsel;  they  returned  a  verdict  of  guilty,  and  the  court 
granted  a  new  trial.  United  States  v.  Clarke,  2  Cranch  C  C.  152.  So 
where,  on  an  indictment  for  burglary,  the  jury  procured  and  used  in 
their  room  a  map  of  the  countj',  it  was  held,  in  the  absence  of  any  ex- 
ception by  the  State  showing  tliat  the  accused  had  not  been  jn-ejudiced. 
that  a  new  trial  must  be  granted.     State  v.  Lantz,  23  Kan.  728. 

1  Com.  v.  Edgerly,  10  Allen,  1S4;  Stewart  v.  Burlington,  etc.  R.  Co., 
11  Iowa.  62.  New  trials  are  often  granted  because  improper  evidence 
has  been  permitted  to  be  given  in  tlie  hearing  of  the  jury,  although 
they  are  afterwards  instructed  to  disregard  it.  Penfiekl  v.  Carpender, 
13  Johns.  350;  Irvine  v.  Cook,  15  Johns.  239. 

'^  Fost.  §  387. 


^386.]  PAPERS  NOT  RECEIVED  IN  EVIDENCE.  483- 

statements  of  their  claims,  accounts  and  papers,  which 
serve  simply  to  preserve  those  things  in  their  recollection 
which  the  memory  cannot  be  expected  to  retain.  In  that 
State,  for  instance,  a  party  may  orally  inform  the  jury  that 
he  claims  the  land  in  controversy  by  certain  courses  and 
distances,  and  a  draft  showing  the  nature  and  extent  of  his 
claim  may  properly  be  sent  to  to  the  jury ;  though  it  is  not 
error  for  the  judge  to  refuse  to  do  so  ;  ^  it  being,  as  else- 
where shown,  a  matter  of  discretion  with  the  judge  to 
withhold  from  the  jury-room  any  papers  which  he  may 
think  ought  not  to  go  there. ^  So,  in  Michigan,  it  is  not 
error,  and  is  in  accordance  with  established  practice,  to 
permit  the  jury  to  take  to  their  room  a  computation  made 
by  the  plaintiff's  attorney  for  the  purpose  of  aiding  them 
in  estimating  the  amount  due  the  plaintiff,  should  they  find 
his  theory  of  the  case  to  be  correct,  provided  they  under- 
stand that  it  is  not  to  be  considered  by  them  as  evidence.^ 
But  where  such  a  computation  was  made  hy  a  witness  in  the 
•case,  the  practice  was  condemned,  though  the  court  refused 
to  set  aside  the  verdict,  the  right  result  having  been  reached,* 
So,  in  New  York  where  the  jury,  during  their  deliberations 
came  back  into  the  court  room,  and,  while  there,  found  on 
the  floor  and  read  a  memorandum  which  had  been  used  by 
the  counsel  of  the  successful  party,  containing  items  of 
damage,  and  the  judge,  on  discovering  this,  took  it  from 
them,  and  instructed  them  that  they  had  no  right  to 
it,  and  should  give  no  heed  to  it,  and  the  jury 
afterwards  returned  a  verdict  with  damages  in  accord- 
ance with  the  instructions  of  the  court,  it  was  held 
that  there  was  no  ground  for  a  new  trial.*  So,  under 
a  repealed  statute  of  Indiana,  which  committed  the  whole 
subject  to  the  discretion  of  the  trial  court,  where  a  bill  of 
particulars    had    been   ruled  out   as    evidence,   and    yet    a 

1  O'Hara  v.  Kichardsou,  46  Pa.  St.  385,  389. 

2  Ante,  §  383,  snbsec.  3. 

3  Millar  v.  Cuddy,  43  Mich.  273. 

*  Hatfield  v.  Cheaney,  76  111.  488. 

5  Dolan  V.  ^taa  las.  Co.,  22  Hun,  396. 


484  BOOKS  AND  TAPERS  IN  THE  JURY-ROOM.      [CH.  XIX. 

witness  had  tcstilied  that  it  was  correct  in  amount,  it 
w;is  held  that  the  judge  might,  in  his  discretion,  permit 
the  jury  to  take  the  paper  with  them,  not  to  be  referred  to  as 
evidence,  but  as  a  memorandum  of  what  the  evidence  was  on 
the  subject,^ — a  nice  distinction,  certainly.  In  another  case 
in  that  State  the  jury  were  permitted  to  take  with  them  a 
paper  which  had  been  drawn  up  by  one  of  the  counsel,  con- 
taining an  estimate  of  the  amount  due  the  plaintiff.  The 
court,  while  disapproving  the  practice,  as  liable  to  lead  to 
fraud  and  abuse,  held  that  in  this  particular  case  it  was  not 
error."^  On  the  other  hand,  it  has  been  held  in  Georgia  that 
a  plat  of  a  survey  of  land,  three  lines  upon  which  were 
legally  run,  and  therefore  admissible  in  evidence  —  we  are 
speaking  in  the  peculiar  terms  of  the  decision  —  and  one 
line  upon  which  was  run  by  a  private  surveyor,  without 
notice,  and  therefore  not  admissible  in  evidence,  could 
not  go  to  the  jury  room.^  So,  in  North  Carolina,  in 
an  action  on  an  account,  the  court  drew  up  a  memorandum 
to  enable  the  jury  to  make  the  proper  calculations,  in  case 
they  should  find  for  the  plaintiff ;  and  this  he  permitted 
them  to  take  to  their  room.     It  was  held  error.* 

(3.)  Exception  where  the  Paper  is  Immaterial  or  not 
Prejudicial. —  If  the  paper  was  immaterial,  and  if  its  de- 
livery to  the  jury  was  not  attended  by  any  wrongful  con- 
duct on  the  part  of  the  prevailing  party  or  his  counsel,, 
there  is  no  good  reason  for  making  it  a  ground  for  a  new 
trial  that  it  was  sent  to  the  jury.^  Such  a  case  would  seenv 
to  be  analogous  to  a  case  where  the  judge  has  admitted  im- 
material evidence,  or  evidence  to  an  immaterial  point, 
which  is  no  ground  for  a  new  trial. ^  Such  a  case  would 
also  be    like  that  of   erroneous  abstract  instructions.       If 

1  Waltz  V.  Robertson,  7  Blackf.  409. 

2  Alexander  v.  Dnnn,  ~)  Ind.  122. 

3  Way  V.  Arnold,  18  Ga.  181,  1!)1. 

4  Bnrton  v.  Wilkes,  G6  N.  C.  604. 

5  State  V.  Taylor,  20  Kan.  643;  Kittredj^e  v.  Elliott,  16  N.  II.  77,  82: 
Schappner  v.  Second  Ave.  R.  Co.,  55  Barb.  497;  AVinslow  v.  CampbelU 
46  Vt.  746. 

6  Cowen,  J.,  in  Fanners',  etc.  Bank   v.  \VhiulieId,  24  Wend.  410,  42G. 


§   386.]  PAPERS  NOT  PtECEIVED  IN  EVIDENCE.  485 

the  court  gives  to  the  jury  instructions  which,  if  erro- 
neous, are  entirely  abstract  and  immaterial,  and  have  no 
tendency  to  influence  their  verdict  against  the  party  com- 
plaining, this,  many  courts  have  held,  will  be  no  ground  for 
a  new  trial. ^  But  it  seems  that  the  court  must  see  that  the 
paper  was  immaterial,  the  presumption  being  that  it  influ- 
enced the  jury  improperly.^  In  cases  of  felony,  if  the 
character  of  the  paper  was  such  that  it  may  have  prejudiced 
the  accused,  the  burden  is  said  to  be  on  the  State  to  show 
that  it  did  not  have  this  effect ;  and,  in  the  absence  of  such 
a  showing  on  the  part  of  the  State,  a  new  trial  will  be 
granted.^  If  the  chances  that  it  prejudiced  the  losing  party 
are  equal,  it  has  been  held  that  a  new  trial  ought  to  be 
granted  where  the  question  arose  on  a  bill  of  exceptions, 
thougrh  it  was  said  that  it  would  be  matter  of  discretion  if 
decided  upon  a  case.*  On  the  contrary,  it  has  been  said 
that  where  such  papers  are  taken  inadvertently,  without  the 
permission  of  the  court,  and  not  through  an  improper  in- 
tervention of  any  person,  and  it  is  not  shown  what,  or 
whether  any  use  of  them  was  made  by  the  jury  in  their 
deliberations,  this  will  afford  no  ground  for  a  new  trial. ^ 
We  suggest  that  in  this  case  the  real  question,  is  not  whether 
the  paper  was  material  to  the  issues  on  trial,  but  whether  it 
was  of  such  a  nature  as  that  it  would  be  likely  to  prejudice 
the  party  against  whom  the  verdict  was  rendered  ;  ^  and  we 
apprehend  that  it  may  l)e  stated  with  confidence  that,  un- 
less the  paper  was  of  such  a  nature,  the  fact  that  the  jury 

1  Thomp.,  "Charging  the  Jury,"  §  123. 

2  Whitney  v.  Wliitman,  5  Mass.  405. 

3  State  V.  Lantz,  23  Kan.  728. 

*  Farmers',  etc.  Bank  v.  Whinfield,  24  Wend.  419,  425,  427. 

"Ball  V.  Carley,  3  Ind.  577;  Bersch  v.  State,  13  Ind.  434;  Glidden  v. 
Towle,  31  N.  H.  147,  171. 

f^  Ante,  §  348;  Walker  v.  Hunter,  17  Ga.  364,  414;  Benson  v.  Fish, 
C  Me.  141;  Palmore  v.  State,  29  Ark.  248;  Thrall  v.  Smiley,  9  Cal.  529, 
537;  Clark  v.  Whitaker,  18  Conn.  543,  549;  Ruckersville  Bank  v. 
Hemphill,  7  Ga.  396,  418;  State  v.  Accola,  11  Iowa,  246;  Greff  v.  Blake, 
16  Iowa,  222;  Foster  v.  McO'Blenis,  IS  Mo.  88;  O'Brien  v.  Merchants' 
Fire  Ins.  Co.,  6  Jones  &  Sp.  482;  Dolan  v.  .Etna  Ins.  Co.,  22  Hun,  396; 
Winslow  V.  Campbell.  46  Vt.  746;  People  v.  Wilson,  8  Abb.  Pr.  137; 


486  BOOKS  AND  PAPERS  IN  THE  JURY-ROOM.        [CII    XIX, 

were  suffered  to  take  it  to  their  room  will  be  no  ground 
for  a  new  trial. ^ 

(4.)  How  far  Discretionary  with  Trial  Court. —  In 
some  States  the  whole  subject  is  committed  to  the  discre- 
tion of  the  court.  Here,  of  course,  the  rule  is  that  the 
action  of  the  trial  court  is  final  and  is  not  subject  to  review 
by  an  appellate  court,  except  in  cases  where  the  dis- 
cretionary power  has  been  manifestly  abused.^  Accord- 
ingly, it  is  said  in  Kansas  that "  where  all  the  evidence  is  in 
writing,  it  is  generally,  though  probably  not  always,  the 
duty  of  the  court  to  permit  the  jury  to  take  it  with  them,, 
on  retiring  to  consider  of  their  verdict.  But  when  it  is  not 
all  in  writing,  it  rests  largely  in  the  discretion  of  the  court 
whether  it  will  permit  or  refuse  to  permit  any  portion  of 
that  which  is  in  writing  to  be  taken  to  the  jury-room  by 
the  jury ;  and  the  Supreme  Court  will  reverse  the  action  of 
the  district  court  in  such  cases  only  when  it  has  abused  it& 
discretion."^ 

In  New  York  it  is  said :  "  The  modern  rule,  as  settled  in 
this  State  is,  that  whether  any  and  what  papers  which  have 
been  given  in  evidence  may  be  taken  by  the  jury,  when  they 
retire  to  deliberate  upon  their  verdict,  is  a  matter  within 
the  discretion  of  the  judge  before  whom  the  action  is 
tried.     It  does  not,  however,  follow  as  a  matter  of  course 


State  V.  Tindall,  10  Rich.  L.  212 ;  Peacliam  v.  Carter,  21  Vt.  515 ;  Hix 
V.  Drury,  5  Pick,  297;  Killen  v.  Sistrunk,  7  Ga.  283. 

1  In  Viner's  Abridgment  (Tit.  Verdict,  pi.  19,  citing  14  H.  7,  29) ,  we  find 
the  following  statement  on  Year  Book  authority:  "If  a  scroll  whicli 
concerns  the  issue,  and  does  not  induce  any  partiality,  be  cast  among 
jm-ors  in  a  house,  this  shall  not  make  the  verdict  void."  See  Lansdale 
V.  Brown,  4  Wash.  C.  C.  148, 157,  where  the  papers  consisted  of  deposi- 
tions, parts  of  whicli  had  been  excluded;  Page  v.  Wheeler,  5  N.  H.  91, 
where  the  papers  consisted  of  bills  of  goods,  which  showed  merely  facts 
which  were  admitted  on  tlie  trial. 

2Howland  v.  Willetts,  9  N.  Y.  170;  Porter  v.  Mount,  45  Barb.  422; 
Shappner  v.  Second  Ave.  R.  Co.,  55  Barb.  497;  Sanderson  v.  Boweo, 
4  Thomp.  &  C.  675;  Little  Schuylkill  Nav.  Co.  v.  Richards,  57  Pa.  St. 
142,  148;  O'Hara  v.  Richardson,  46  Pa.  St.  .385,  389;  Spence  v.  Spence, 
4  Watts.  165 ;  Hamilton  v.  Glenn,  1  Pa.  St.  340. 

8  Hairgi-ove  v.  Millington,  8  Kan.  480,  485. 


§    387.]  PLEADINGS  AND  PROCESS.  487 

that  a  verdict  is  to  be  set  aside  solely  because  the  jury 
has  improperly  taken  to  their  room,  when  considering 
their  verdict,  papers  without  the  consent  of  the  court.  On 
the  contrary,  although  such  taking  on  the  part  of  the  jurors 
is  punishable,  the  verdict  will  nevertheless  be  allowed  to 
stand,  unless  it  appears  that  the  verdict  itself  may  have 
been  influenced  or  affected  by  means  of  the  papers  thus  im- 
properly examined  and  considered  by  the  jury."  ^  But 
this  doctrine  obviously  cannot  be  accepted  without  limita- 
tion. If  a  given  paper  is  not  competent  evidence,  the 
court  has  no  more  discretionary  power  to  send  it  to  the 
jury-room  and  let  the  jury  there  consider  it,  than  it  would 
have  to  admit  it  in  evidence  on  the  trial.  To  do  so  would 
be  error  in  the  latter  case,  and  it  would  be  equally  error  in 
the  former.^ 

§  387.  Pleadings  and  Process. —  The  jury  have,  ordina- 
rily, nothing  to  do  with  the  pleadings,  although  they  are 
read  to  them  to  inform  them  of  the  issues.  All  matters  of 
pleading  are  addressed  to  the  court,  and  it  is  the  duty  of 
the  judge,  in  charging  the  jury,  to  state  to  them  the  issues 
to  be  tried.  Harm  is  not  likely  to  arise  from  the  fact  of 
the  jury  taking  the  pleadings  to  their  room  when  they 
retire  ;  for  the  jury  know,  if  they  know  anything,  that 
what  the  lawyers  have  written  in  the  pleadings  is  not  evi 
dence  for  them  to  consider ;  and  to  suppose  that  such 
papers  will  influence  them  improperly,  is  in  effect  to  impeach 
the  whole  system  of  trial  by  jury.  Accordingly,  it  is  be- 
lieved to  be  the  general  practice  for  the  jury  to  take  the 
pleadings  and  process  with  them  when  they  retire  to  make 
up  their  verdict ;  and  it  has  been  held  no  ground  for  a  new 
trial  that  the  jury  took  to  their  room  the  indictment  and 
other  papers  attached  thereto.^     So,   where  a  declaration 


1  Sanderson  v.  Bowen,  4  Thomp.  &  C.  675. 

2  Alger  V.  Thompson,  1  Allen,  453.  Compare  Waltz  v.  Robertson, 
7  Blackf.  499,  under  a  repealed  statute  of  Indiana.  Alexander  v.  Dunn, 
5 Ind. 122. 

3  State  V.  Belong,  12  Iowa,  453;  following  Shields  v.  Guffey,  9  Iowa 
323.     See  also  Wright  v.  Rogers,  Pen.  (N.  J.)  546. 


488  BOOKS  AND  PArERS  IN  THE  JURY-ROOM.     [CH.  XIX, 

had  been  withdrawn  and  another  one  sul)stituted  in  its 
phice,  it  was  held  no  ground  for  a  new  trial  that  the  jury 
were  permitted  to  take  out  the  old  one,  it  being  substan- 
tially the  same  as  that  on  which  the  cause  was  tried. ^  So, 
where  the  original  writ  in  a  cause  was  amended  by  increas- 
ing the  claim  for  damages,  and  the  jury  retired  from  the 
bar  without  taking  this  paper  with  them,  it  was  held  no 
error  for  the  judge  to  send  it  to  them  afterwards.^ 

§  388.  Written  Instructions. —  In  the  absence  of  any 
statutory  direction  on  the  subject,  instructions  given  by 
the  court  to  the  jury  in  w^riting  may,  in  the  discretion  of 
the  court,  be  taken  with  them  to  their  room  when  they 
retire  to  deliberate.^  It  has  been  so  held  in  Iowa,  and  the 
statute  of  that  State,*  defining  what  papers  may  be  taken 
by  the  jury,  is  not  construed  as  prohibiting  the  jury  from 
taking  the  written  instructions  of  the  court  to  their  room, 
although  it  does  not  mention  them.^  In  Alabama,  a  statute 
required  the  judge  to  charge  the  jury  in  writing,  and 
provided  that  the  instructions  shall  "become  part  of  the 
record,  and  may  be  taken  by  the  jury  with  them  on  their 
retirement."  •*  It  has  been  held  that  this  statute  is  manda- 
tory, and  that  the  judge  must  allow  the  jury  to  take  the 
charge  with  them  if  requested  so  to  do.^  In  Georgia,  on 
the  other  hand,  it  is  held  error  for  the  judge  to  permit  the 
jury  to  take  with  them,  on  their  retirement,  his  written 
charge,  against  the  objection  of  counsel.  "This,"  said 
the  court,  "  we  think  an  unsafe  practice.  The  precaution- 
ary injunction  to  the  jury  not  to  read  any  part  without 
reading  the  whole,  is  not  a  reliable  safeguard  against  even 
an  unintentional  misuse  of  the  document."  ^     Although  the 

1  Hall  V.  Rupley,  10  Pa.  St.  231. 

^  Smith  V.  llolcombe,  99  Mass.  553. 

3  Hurley  v.  State,  29  Ark.  17,  29;  State  v.  Tompkins,  71  Mo.  613.  See 
Goode  V.  Linecum,  1  How.  (Miss.)  281;  Wikls  v.  Bo«^an,  57  Ind.  4.53, 
45G;  Langworthy  v.  Myers,  4  Iowa,  18. 

*  Post,  §  402. 

*  Head  v.  Langworthy,  15  Iowa,  235. 

6  Ala.  Code  of  1851,  §2355. 

7  Miller  v.  Hampton,  37  Ala.  342. 

"  Gholston  V.  Gholstou,  31  Ga.  625,  638. 


§  390.]  jurors'  notes  of  the  testimony.  489 

jury  are  entitled  to  take  such  instructions  to  their  room 
when  they  retire,  yet  it  does  not  folloAv  that  it  is  compe- 
tent for  the  judge  to  send  to  them  additional  instructions 
while  in  their  room.  They  are  to  be  instructed  only  in 
open  court,  in  the  presence  of  the  parties  or  their  counsel ; 
and,  with  certain  obvious  exceptions,  the  judge  has  no  more 
right  to  hold  secret  communications  with  them  than  any 
other  person  has.^ 

§  389.  Judge's  Minutes. —  A  new  trial  has  been  granted 
because  the  judge  allowed  the  jury  to  take  with  them  his 
minutes  or  notes  of  the  trial.  The  case  was  regarded  as 
resembling  that  where  a  jury  called  a  Avitness  who  had  been 
sworn  upon  the  trial,  and  had  him  recite  again  his  evidence 
to  them,^ 

§  390.  Jurors'  Notes  of  the  Testimony. —  It  will  be  seen 
by  the  statutes  elsewhere  given,  that  in  some  States  jurors 
^ire  permitted  to  take  notes  of  the  testimony,  and  to  take 

1  Ante,  §  355.  In  Indiana  it  is  said  that  "tlie  pvineiple  is,  tliat  the  jury 
shall  takathe  law  from  the  court.  The  mode  in  which  the  court  com- 
municates with  the  jury,  is  by  addressing  them  in  open  court.  The 
juiy  take  the  law  from  the  court  through  the  ear.  By  so  doing  they 
generally  stand  upon  an  equality,  because  none  but  men  with  hearing 
ears  are  competent  jurors.  In  the  juiy-room,  then,  each  depends  upon 
his  own  recollection  of  the  instructions,  and  upon  the  impression  they 
made  upon  him  for  their  meaning,  their  construction;  and  thus  stand 
upon  an  equality.  If  they  differ,  they  should  come  into  court,  and,  in 
the  presence  of  the  parties,  let  the  court  be  the  interpreter  of  its  own 
Instructions.  But  if,  instead  of  this  being  done,  the  court  sends  the 
written  instructions  to  the  jury,  inasmuch  as  jurors  are  not  upon 
■equality  in  ability  to  read  and  interpret  writing,  it  puts  it  in  the 
power  of  sharp  ones  on  the  jury  to  read,  and  become  the  interpreters  for 
the  court,  and  mislead  their  less  skillful  fellow-jurors.  We  think  in- 
structions should  not  be  sent  to  the  jury-room  without  the  consent  of 
both  parlies."  Smith  v.  McMillen,  19  Ind.  391,  per  Perkins,  J.  Other 
•courts  and  legislatures  pursue,  with  regard  to  this  subject,  precisely  the 
opposite  policy.  Juries  must  be  instructed  in  writing  and  in  writing- 
only.  They  must  take  the  written  instructions  with  them  when  they  re- 
tire. They  must  not  be  instructed  by  parol,  either  in  whole,  or  in  part; 
iind  it  is  error  for  the  judge,  after^having  instructed  them  in  writing,  to 
modify  such  instructions  by  parol.  Thompson  on  ''Charging  the 
Jury,"  §§  103-105.  In  Texas  the  statute  provides  that  the  jury  may 
take  out  the  written  instructions.     Post,  §  402. 

2  Neil  V.  Abel,  24  Wend.  1S5;  Mitchell  v.  Carter,  14  Hun,  448. 


490  BOOKS  ANT)  PAPERS  IN  THE  JXTRY-ROOM.      [CH.  XIX. 

them  to  their  room.^  In  the  ;il)sencc  of  such  a  statute,  it 
has  been  held  that,  for  a  juror  to  do  this,  is  such  misconduct 
as  will  avoid  the  verdict.  The  reasons  on  which  this  view 
is  based  are  thus  expressed  :  "  The  juror  is  to  register  the 
evidence,  as  it  is  given,  on  the  tablets  of  his  memory,  and 
not  otherwise.  Then  the  faculty  of  the  memory  is  made, 
so  far  as  the  jurv  is  concerned,  the  sole  dei)ository  of  all 
the  evidence  that  may  be  given,  unless  a  different  course  he 
consented  to  by  the  parties,  or  the  court.  The  jury  should 
not  be  allowed  to  take  the  evidence  with  them  to  their 
room,  except  in  their  memory.  It  can  make  no  difference 
whether  the  notes  are  written  by  a  juror  or  by  some  one 
else.  Jurors  would  be  too  apt  to  rel}'  on  Avhat  might  be 
imperfectly  written,  and  thus  make  the  case  turn  on  a  part 
only  of  the  facts."  '^ 

§  391.  Law  Books. —  (1.)  Must  not  be  taken  out  btj 
Jury. —  The  rule  that  the  jury  are,  in  criminal  prosecutions 
and  prosecutions  for  libel,  judges  both  of  the  law  and  the 
facts,  does  not  extend  so  far  as  to  exonerate  the  judge 
from  instructing  them  as  to  the  law,  which  he  is  bbund  to 
do  on  application,^  nor  the  jury  from  accepting  such  in- 
structions as  the  law,  which,  as  has  been  held  again  and 
again,  they  are  bound  to  do.*  It  means,  as  we  understand 
it,  that  the  jury  shall  not  be  compelled  in  such  prosecutions 
to  limit  their  finding  to  certain  facts,  leaving  the  judge  ta 
pronounce  the  law  thereon.  That  is,  it  abolishes  special 
verdicts,  and  allows  the  jury  to  resolve,  by  a  general  ver- 
dict of  guilty  or  not  guilty,  the  questions  both  of  law  and 
fact  involved  in  the  trial.  The  jury,  then,  are  to  take  the 
law  from  the  court,  and  if  they  do  not  understand  the  in- 
structions already  given,  or  if  they  desire  further  instructions 
on  a  particular  point,  they  are  at  liberty,  under  certain  safe- 
guards as  to  the  presence  of  the  parties,  and  the  like,  to 
come  into  court  and  ask  for  further  instructions. °   But  they 

1  Post,  §  402. 

2  Cheek  v.  State,  35  Ind.  492,  495. 

3  Thomp.,  "  Charging  the  Jury,"'  §  78. 
*  Xewkirk  v.  State,  27  Ind.  1,  3. 

5  Palmore  v.  State,  29  Ark.  249. 


§   391.]  LAW  BOOKS.  491 

have  no  right  to  undertake  in  the  jury-room  an  independent 
investigation  of  the  law  of  the  case/  and  they  cannot  be 
allowed  to  have  law  books  in  their  room  for  that  purpose. 
Accordingly,  it  has  been  held  no  error  for  the  judge  to  de- 
cline to  allow  the  jury  to  take  with  them  to  their  room  the 
Revised  Statutes.  "The  construction  of  statutes,"  says 
the  court,  "is  often  much  aided  by  general  principles  not 
laid  down  therein, _  and  can  only  be  known  by  careful 
study  of  elementary  treatises  and  reports  of  decisions,  re- 
quiring much  and  long  labor.  The  simple  statement  of  the^ 
defendant's  proposition  on  this  point,  cannot  fail  to  impress 
the  mind  well  informed  on  legal  subjects,  with  its  utter  im- 
practicability, uncertainty,  danger  and  absurdity."^ 

In  an  early  case  in  Missouri  it  was  said  by  Tompkins,  J. : 
"A  court,  therefore,  ought  not  to  allow  juries  to  take  books  to- 
find  law  to  settle  a  case.  But  I  see  no  impropriety  in  the  court 
permitting  a  jury  to  take  a  law  book  in  their  retirement,, 
where  the  paragraph  applying  to  the  case  may  be  separately 
marked  out,  as  in  the  case  of  a  statutory  provision."  But 
there  the  court  told  the  jury  that  they  were  judges  of  the 
law  and  the  facts,  and  then  gave  them  a  law  book  to  take 
out  with  them  ;  and  for  this  reason  the  judgment  was  re- 
versed.^ The  above  dictum  of  Tompkins,  J.,  was  distinctly 
repudiated  by  the  Supreme  Court  of  Missouri  in  a  later 
case.  Here,  the  court,  after  instructions  had  been  sub- 
mitted, allowed  the  defendant  to  read  two  sections  of  the 
statute  to  the  jury,  as  instructions  for  the  defendant,  and 
then  permitted  them  to  take  the  book  with  them,  when  they 
retired  to  consider  of  their  verdict.  It  was  held  that  this 
practice  could  not  be  sanctioned  or  allowed.  In  the  view 
of  the  court,  the  fact  that  the  judge  might  mark  a  particu- 
lar paragraph  which  he  desired  the  jury  to  consider  did  not 
meet  the  objection.  "  What  assurance,"  said  Wagner,  J.,. 
"  is  there  that  they  will  confine  themselves  to  the  particular 

1  Harrison  v.  Hauce,  37  Mo.   185;    Merrill  v.  Nary,   10    Allen,  416;. 
State  V.  Smith,  6  K.  I,  33;  Ncwkirk  v.  State,  27  Ind.  1. 

2  State  V.  Kimball,  50  Me  409,  418. 

3  Hardly  v.  State  ,  7  Mo.  607. 


45»2  BOOKS  AND  PAPERS  IN  THE  JURY-ROOM.     [CH.  XIX, 

paragraph  or  section?  Is  it  not  natui-al,  when  the  book  is 
once  in  their  possession,  that  they  should  search  f or  what- 
•<3ver  light  they  can  obtain  in  other  places,  which  they  may 
suppose  has  some  application  to  the  same  subject?  Then, 
again,  are  they  sufficiently  advised  to  apply  the  proper  legal 
construction?  The  declaring  and  applying  the  law  has  been 
■entrusted  to  the  courts  on  account  of  the  learning  and  quali- 
fications of  the  judges,  and  they  must  not  be  permitted  to 
surrender  or  renounce  this  branch  of  their  powers  to 
another  body."  ^  But  the  bare  circumstance  that  the  jury 
in  a  capital  case  deliberated  on  their  verdict  in  the  court 
room  where  there  w^as  a  set  of  reports  of  the  Supreme 
Court  of  the  State,  was  not,  in  Missouri,  regarded  as  suf- 
ficient ground    for  a  new  trial. ^ 

It  has  also  been  held  in  Georgia,  in  a  trial  for  murder, 
that  the  fact  that  a  copy  of  the  Code  was  carried  to  the 
jury-room,  is  not  ground  for  a  new  trial,  where  it  appears 
that  the  jury  had  already  agreed  upon  their  verdict,  and  pro- 
cured the  Code  merely  for  the  purpose  of  putting  their  ver- 
dict in  proper  form.' 

(2.)  In  Civil  Cases. —  The  rule  is  of  greater  force  in 

civil  than  in  criminal  cases,  where  no  doubt  has  ever  arisen 

that  the  jury  are  always  bound  to  take  the  law  from  the 

court,  and  from  no  other  source.     Accordingly,  it  has  been 

held  in  Massachusetts,  upon  deliberate  consideration,  and  in 

a    case  where   no  other  point  was   presented,   that    if  the 

judge,  in  the  trial  of  a  civil  case,   at  the  request  of    the 

jury,  and  without  the  knowledge  of  the  parties,  allow  them 

to  have  a  copy  of  the  General  Statutes  in  their  room  while 

deliberating  upon  their  verdict,  their  verdict  should  be  set 

aside.*     The  practice  is  one  so  obviously  improper  that  even 

Avhere  the  parties  consent,  the  judge  may,  in  his  discretion, 

refuse  to  allow  the  jury  to  take  the  law  book  to  their  room.*'* 

1  Harrison  v.  Haiice.  37  Mo.  185.    Compare  State  v.  Hopper,  71  Mo. 
42.5. 
"  State  V.  Hopper,  71  Mo.  425. 

3  Graves  v.  State,  63  Ga.  740. 

4  Merrill  v.  Nary,  10  Allen,  416. 

^  Thus,  ill  Burrows  v.  Unwiu,  3  Car.  &  P.  310,  after  the  jury  had  re- 


§  391.]  LAW  BOOKS.  493^ 

(3.)  Rule  hov)  far  controlled  by  Judicial  Discretion. — 
But  even  this  practice  is,  in  some  courts,  controlled  to 
some  extent  by  judicial  discretion.  Thus,  it  has  been  held 
no  ground  for  a  neAV  trial,  that,  on  the  trial  of  an  indict- 
ment for  murder,  the  judge  sent  the  statutes  of  the  State  to 
the  jury,  at  their  request,  calling  their  attention  to  the  sec- 
tion relating  to  homicide,  which  he  had  probably  just 
read  to  them  in  his  instructions.^  In  another  capital  case 
jurors  were  shown  to  have  read,  during  their  deliberations,, 
from  a  copy  of  the  Revised  Statutes,  which  was  properly  in 
their  room,  the  law  with  reference  to  the  crime  for  which 
the  accused  was  on  trial.  Afterwards  they  came  into  court, 
and  received  clear  and  explicit  instructions  concerning  the 
law  of  the  case.  Under  the  circumstances,  it  was  held  that 
there  was  no  ground  for  a  new  trial. ^ 

(4.)  What  if  taken  out  Secretly. —  The  case  is  stronger 
where  the  jury  send  for  a  law  book,  and  read  it  without  the 
knowledge  of  the  parties  or  the  judge.  Here  the  verdict 
will  ordinarily  be  set  aside. ^ 


tired,  they  sent  a  message  to  the  court,  requesting  that  Sehvyn's  Nisi 
Prius  be  sent  to  them.  To  tliisboth  parties  consented.  Lord  Tenterden 
refused  the  request,  and  further  instructions  were  given  them  in  open 
court. 

i  Gandolfo  v.  State,  11  Ohio  St.  114,  118. 

2  People  V.  Gaffney,  14  Abb.  Pr.  (N.  S.)  36.     Compare  Wilson  v.  Peo- 
ple, 4  Park  Cr.  K.  619,  632. 

estate  V.  Smith,  6  R.  I.  33;  People  v.  Ilartung,  4  Park.  C.  R.  256; 
Newkirk  v.  State,  27  Ind.  3.  Com.  v.  Jenkins,  Thach.  Crim.  Cases,  118, 
228,  which  lield  the  contrary,  is  not  only  overruled  by  Merrill  v.  Nary 
10  Allen,  416,  but  is  wrongly  reasoned.  It  proceeds  upon  the  authority 
of  Vicary  v.  Farthing,  Cro.  Eliz.  411,  where  the  solicitor  of  the  plaintiff 
came  to  the  jury  and  delivered  to  them  a  church  book  which  had  been 
given  to  them  in  evidence  before  at  the  bar,  and  they  found  for  the- 
plaiatiff.  This  it  was  held  (one  of  the  four  judges  diirsenting),  ought 
not  to  avoid  the  verdict.  But  the  distinction  is  vital  between  books  or 
other  documents  offered  and  admitted  in  evidence,  and  law  books,  which 
the  jury  desire  to  consult  to  inform  themselves  of  the  law.  On  grounds- 
explained  in  the  next  chapter,  aflidavits  of  jurors  will  not  be  received  to 
show  that  they  read  and  examined  in  their  room  the  public  statutes  and 
other  works  of  the  law  relating  to  the  fcubject  of  the  trial.  Dakota  Ter. 
v.  Taylor,  1  Dakota  Ter.  479.     Compare  People  v.  Williams,  24  Cal.  31. 


494  BOOKS  AND  PAPERS  IN  THE  JUKY-KOOM.      [CH.  XIX. 

§  392.  Scientific  Books  —  3Iaps  —  Dictionaries  —  Direc- 
tories.—  The  rule  which  excludes  law  books  from  the  jury- 
room  obviously  applies  to  scientitic  books  which  contain  mat- 
ter bearing  upon  the  subject  of  the  trial :  and  it  is  no  error  to 
refuse  to  allow  such  a  book  to  be  taken  to  the  jury-room, 
even  where  it  has  been  used  in  evidence.'  So,  in  an  ac- 
tion to  recover  a  penalty  for  obstructing  the  highway,  the 
fact  that  the  jury,  without  leave  of  court,  procured  and 
used  during  their  deliberations  a  map,  has  been  held  such  an 
irregularity  as  to  require  the  granting  of  a  new  trial, 
unless  it  is  shown  that  the  map  contained  nothing  which 
could  have  influenced  the  verdict,  and  the  burden  of 
showing  this  rests  upon  the  successful  party. ^  But  this  rule 
does  not  apply  to  the  use  by  the  jury  of  a  dictionary  for 
the  purpose  of  ascertaining  the  meaning  of  a  word  em- 
ployed by  them  in  a  special  verdict,^  and  where,  in  the  trial 
of  a  criminal  case,  the  jurors  procured  and  used  in  their 
room  several  directories  of  the  city  of  New  York,  and, 
before  they  had  delivered  their  verdict,  this  fact  became 
known  to  the  court,  and  the  court  admonished  them  to 
banish  from  their  minds  any  information  thus  obtained,  it 
was  held  not  to  afford  suflicient  ground  for  a  new  trial.'* 

§  393.  Rule  where  the  Paper  has  heen  improperly 
handed  to  the  Jury. —  ( 1 . )  By  the  Prevailing  Party 
or  his  Counsel. —  We  have  elseAvhere  seen  that  where 
it  appears  that  the  prevailing  party  has  tampered  with 
the  jury,  their  verdict  is  set  aside  without  reference  to 
the  merits,  on  grounds  of  public  policy,  and  as  a  pun- 
ishment for  the  misconduct.^  This  rule  obviously  should 
apply  to  all  cases  where  the  jirevailing  party  has  de- 
signedly subjected  the  jury  to  any  improper  influence. 
Accordingly,  if  a  deposition,  or  other  paper  which  has  not 

1  State  V,  Gillick,  10  Iowa,  98. 

2  State  V.  Hartniann,  46  Wis.  248. 

3  Wright  V.  Clark,  50  Vt.  130. 

•*  United  States  v.  Horn,  5  Blatch.  105. 

^  Ante,  §  348,  siibsec.  3;  Sheaff  v.  Gray,  2  Yeates,  273;  Foster  v.  Mc- 
O'Blenis,  1  8  Mo.  88,  91. 


§   393.]       PAPERS  HANDED  TO  THE  JURY  BY  COUNSEL.  41^5 

been  read  in  evidence,^  or  parts  of  which  have  been  rejected 
by  the  court,  has  been  delivered  to  the  jury  by  the  counsel 
for  the  prevailing  party  without  consent  of  the  other  side, 
this,  it  has  been  said,  will  avoid  the  verdict,  although  it 
fully  appear  that  the  rejected  parts  were  not  read  by  the 
jur}'.^  Even  in  criminal  cases,  where  the  prosecutor  so 
misdemeans  himself,  the  verdict  will  be  set  aside,  not  as  a 
punishment  to  him,  but  lest,  by  sanctioning  such  prac- 
tices, public  confidence  in  jury  trials  should  be  destroyed.^ 
But  where  the  character  of  the  paper  did  not  appear,  l)ut 
it  was  evidently  thought  by  the  court  to  have  been  one  of 
the  pleadings  in  the  case,  the  fact  that  it  was  handed  to  the 
jury  on  their  retirement,  by  the  prevailing  party,  was  not 
deemed  sufficient  cause  for  a  new  trial.* 

(2.)  By  Counsel  for  the  Losing  Party. —  It  is  scarcely 
necessary  to  suggest  that  where  papers,  which  strictly  ought 
not  to  go  to  the  jury -room,  are  sent  there  at  the  suggestion 
of  counsel  for  the  losing  party,  it  will  be  no  ground  for  a 
new   trial.      The  case  stands    on    substantially   the    same 


1  Killin  V.  Sistrunk,  7  Ga.  281,  294. 

2  Lansdale  v.  Brown,  4  Wash.  C.  C.  148,  157.  Thus  in  Viner's 
Abridgment,  title  Trial,  G.  g.  9.  pi.  19,  it  is  said  to  have  been  decided  in 
Pratt's  Case,  21  Jac.  I.,  that  "  if  there  be  brought  into  court  a  great  book 
of  depositions,  taken  in  chancery,  but  only  some  of  them  are  read  to 
the  jurj'  in  evidence,  and,  after  the  jury  depart  from  the  bar,  a  solicitor 
of  one  party  delivers  this  book  of  depositions  to  the  jury,  who  carry  it 
with  them,  and  there  read  only  those  which  were  read  in  court,  yet  this 
shall  quash  the  verdict;  because  they  ought  not  be  put  in  remembrance, 
after  thej'^  are  gone  from  the  bar,  of  any  evidence  given  before  in  court." 
*'  If,'"  said  the  Supreme  Court  of  New  Hampshire,  "  it  appeared  in  this 
case  that  the  papers  which  were  delivered  to  the  jury  without  being- 
read  upon  the  trial,  were  designedly  so  delivered  by  the  party  who  ob- 
tained the  verdict,  we  should  not  stop  to  inquire  wlietlier  the  papers 
were  material  or  not,  but  should  at  once  set  aside  the  verdict,  as  a 
proper  punishment  for  the  misconduct  of  the  party."  Page  v.  Wheeler, 
5  X.  H.  91,  92.  To  the  same  effect  see  Ball  v.  Carley,  3  Ind.  577,  per 
Roache,  J.;  Jessup  v.  Eldridge,  1  N.  J.  L.  401;  Heffron  v.  Gallupe, 
.55  Me.  563  5?3  *2?2- 

3  State  V.  Hascall,  6  N.  H.  352,  363. 

*  Wright  V.  Rogers,  Pen.  (N.  J.)  547. 


496  BOOKS  AND  PAPERS  IN  THE  JURY-ROOM.      [CH.   XIX. 

iri'ouiul  as  where  incompetent  evidence  is  admitted  without 
objection.^ 

§  394.   What  if  the  Pai»or  was  not  in  fact  read  hy  the 

Jnrj'. —  If  the  paper  was  taken  out  l)y  mistake,  and  not  by 
the  fraud  or  design  of  the  prevailing  party,  or  his  counsel, 
and  if  it  was  not  in  fact  read  by  the  jur}^  then  there  is  no 
occasion  to  grant  a  new  trial  ;  since  no  harm  has  l)een  done 
to  the  party  against  whom  the  verdict  was  rendered,  and 
the  other  party  has  done  no  wrong  for  which  he  is  to  be 
punished.-  And  the  rule  is  the  same  where  it  is  made  to 
appear  that  the  onl}'  jurors  who  read  the  objectionable  paper 
had  already  agreed  to  return  the  verdict  which  was  ren- 
dered;^ or  where  it  is  made  to  appear  by  the  affidavits  of 
jurors  that  the  papers  did  not  affect  their  verdict.* 

§  395.  Presumption  that  the  Papers  were  read. —  But 
where  the  papers  thus  taken  to  the  jury-room  were  impor- 
tant, and  likely  to  have  influenced  the  verdict  of  the  jury 
to  the  prejudice  of  the  party  against  whom  it  was  rendered, 
some  courts  have  indulged  in  the  presumption  that  they 
were  read.  Thus,  in  one  case,  a  deposition  taken  for  the 
defendant,  but  not  read  on  the  trial,  contained  very  material 
evidence  for  the  defendant,  such  as  might  have  had  weight 
"with  the  jury.  It  was  taken  by  the  jury  to  their  room,  l)ut  how, 
it  did  not  appear,  nor  did  it  appear  Avhether  or  not  it  was  in 
fact  read  by  the  jni'v,  or  any  of  them.  Yet  the  court  set 
aside  the  verdict,  saying  :  "  The  facts  which  the  depositions 
disclosed  were  important  for  the  defence  to  have  proved, 
and,  it  seems  to  us,  we  cannot  but  conclude  that  they  were 

1  Alcott,  V.  Boston  Steam  Flour  Mill  Co.,  11  Cash.  91. 

^Hackley  v.  Hastie,  3  Johns.  •252;  Hix  v.  Drmy,  .o  Pic-k.  293:  State 
V.  Tiiulall,  10  Rich.  L.  212;  Wilds  v.  Bogan,  .57  Ind.  4.33.  4."){;. 
••  Where  a  paper,  which  is  capable  of  intlueuciiig  the  jury  on  the 
side  of  the  prevailing  party,  goes  to  the  jury  by  accident,  and  is  read 
by  them,  the  verdict  will  be  set  aside,  although  the  jury  make 
oath  they  were  not  intUienced  by  such  paper,  it  being  impossible  for 
them  to  say  what  effect  it  may  have  had  upon  their  minds.  If  it  was  not 
read,  it  is  the  same  thing  as  though  it  had  not  been  delivorcil."  Lumi)- 
kin.  J.,  in  Killen  v.  Sistrunk.  7  Ga.  294. 

3  Abel  V.  Kennedy.  3  G.  Greene.  47;  Morris  v.  Howe,  3G  Iowa.  4i>(). 

*  Ball  V.  Carlt'v.  3  Ind.  .j77.     P.iit  this  is  doubtful.     .See  next  sectioiu 


§    396.]  CONTRARY  SHOWX  BY  AFFIDAVITS  OF  JURORS.  497 

read,  and  had  their  influence  upon  the  jury  in  making  up 
their  verdict."  ^  In  another  case  the  jury  had,  during  their 
deliberations,  the  minutes  which  were  taken  by  the  plain- 
tiff's counsel  during  the  trial.  How  they  came  to  get  them 
did  not  appear  ;  but  the  Supreme  Court  said  :  "  The  delivery 
of  these  minutes  to  the  jury  by  the  plaintiff's  counsel  (which 
must  be  presumed),  and  their  receiving  and  retaining  them^ 
was  a  gross  impropriety  on  the  part  of  all  concerned  in  the 
transaction.  If,  under  any  circumstances,  a  judgment  thus 
obtained  can  be  permitted  to  stand,  it  must  affirmatively  ap- 
pear that  the  losing  party  could  not  have  been  prejudiced 
by  this  proceeding.  From  such  an  abuse  of  legal  proceed- 
ings, injustice  must  be  presumed,  unless  the  contrary  is  most 
clearly  and  satisfactorily  shown.  Even  if  this  appeared,  it 
may  well  be  doubted  whether  such  misconduct  can  he  over- 
looked in  any  case."     And  a  new  trial  was  granted.^ 

Other  courts,  however,  refuse  to  grant  new  trials  on  this 
ground,  unless  it  be  made  to  appear  affirmatively  that  the 
paper  was,  in  fact,  read  by  the  jury.  It  has  been  so  held  in 
civil  cases  with  reference  to  depositions  which  have  been 
used  as  evidence  in  the  cause,^  and  the  rule  has  been  ex- 
tended to  documentary  evidence,*  to  written  instructions 
which  have  been  asked  for  and  refused,^  to  depositions  parts 
of  which  had  been  excluded,^  and  even  to  the  case  of  news- 
papers containing  prejudicial  articles  in  criminal  trials.^ 

§  39(>.  But  the  Contrary  may  he  sliovni  by  Affidavits  of 
Jurors. —  We  shall  elsewhere  see  that  the  affidavits  of  jurors 
are  admissible  to  sustain  their  /erdict.^  Accordingly,  in 
this    case  it    may    be  shown,  by  the    affidavits  of   jurors, 

'  Bi-onson  v.  Metcalf,  1   Disney,  21.      To  the  same  effect,  O'Brien  v.. 
Merchants'  Fire  Ins.  Co.,  6  .Jones  &  Sp.  482. 

2  D;irfee  v.  Eveland,  8  Barb.  46.     To  the  same  effect  is  Clark  v.  Whit- 
aker,  18  Conn.  543,  549. 

3  Shields  v.  Guffey,  9  Iowa.  322. 

*  Bersch  v.  State,  13  Ind.434. 

*  Goode  V.  Linecum,  1  How.  (Miss.)  281. 

6  Foster  v.  McO'Blenis,  18  Mo.  88. 

7  United  States  v.  McKee,  ante,  §  351. 

8  Pu.sf,  §  44G. 

(32) 


498  BOOKS  AND  PAPERS  IN  THE  JURY-ROOM.      [CII.   XIX. 

ihat  the  paper  which  got  to  tlie  jury-room  was  not,  in  fact, 
read  by  any  of  tlie  jury  ;  ^  or  not  read  by  any  one  until  after 
he  had  made  up  his  mind  ;  -'  and  upon  such  a  showing  there 
will  be  no  ground  for  a  new  tria  . 

§  31)7.  Such  AlHdavits  not  received  to  show  that  the 
Papers  had  no  Improper  Influence  on  them. —  Lt  is  elsc- 
Avhere  seen  that  the  affidavits  of  jurors  will  not  be  received 
to  impeach  their  verdict,  and  that,  subject  to  certain  qualiti- 
cations,  such  affidavits  will  be  received  to  defend  themselves 
from  charges  of  misconduct  ^  It  is  clear  of  doubt,  however, 
])oth  upon  principle  and  authority,  that  the  affidavits  of 
jurors  will  not  l)o  received,  whether  in  impeachment  of  their 
verdict,  or  in  support  of  it,  to  show  the  reasons  w'hich  in- 
jfluenced  their  action,  or  the  mental  conditions  under  which 
they  acted,  or  to  show  what  effect  on  their  minds  certain 
improper  communications  or  influences  to  which  they  were 
subjected,  actually  had.^  Accordingly  the  rule  is  said  to  be 
that  if  material  papers,  not  read  in  evidence,  are  handed  to 
the  jur}'  l)y  mistake,  this  is  a  sufficient  cause  for  a  new  trial  ; 
and  it  is  not  competent  to  the  party  who  has  obtained  the 
verdict  to  prove  by  the  jurors  that  they  were  not  influenced 
33y  the  papers  in  their  finding  ;  but  the  court  must  be  gov- 
•erned  by  the  tendency  of  the  papers  apparent  from  the  face 
-of  them.^  This  rule  is,  of  course,  stronger  where  papers 
■which  have  been  read  in  evidence  on  the  trial  have  been  de- 
signedly sent  to  the  juiy  by  the  prevailing  party.  Here  the 
a'ule  being,  as  elsewhere  stated,  that  the  court  wMll  set  aside 
Tthe  verdict  as  a  punishment  to  the  party  thus  tamp  ring 
nvith  the  jury,  without  reference  to  the  materiality  of  the 
^)apers  or  their  probable  effect  on  the  minds  of  the  jurors,^ 
it  lx}Comes  immater  al  to  show  that  such  papers  did,  in  fact, 
influence  the  jury  ini[)roperly  ;    and  therefore,  of  course, 

»  Hnckley  v.  Hastie,  3  Johns.  252. 

2  Morris  v.  Howe,  36  Iowa,  490.      This  ruling,  however,  is  of  very 
doubtful  propriety. 

3  Post,  §  446. 
^Pfjst,  §§  438-441. 

^  Page  V.  Wheeler,  5  X.  11.  01,  03;    AVhitney  v.  Whitman,  5  Mass.  405. 
^Ante,  §  348,  subscc.  3;  post,  §  424. 


^   398.]   WHAT  IF  COUNSEL  DO  NOT  PROPERLY  OBJECT.  499 

affidavits  of  the  jurors  will  not  be  received  to  show  that 
fact.i 

§  398.  AVliat  if  Counsel  do  not  properly  object. —  If 
•counsel  for  the  party  complaining  sees  that  a  certain  paper 
is  about  to  be  sent  to  the  jury,  and  does  not  object  at  the 
time,  or  in  a  proper  manner,  it  will  be  no  ground  for  a  new 
trial. ^  It  must  appear  that  the  counsel  for  the  party  com- 
plaining objected  thereto,  or  that  he  had  not  an  opportunity 
to  object,  or  otherwise  that  his  rights  were  prejudiced 
thereby.^  Thus,  at  the  close  of  a  trial,  it  appeared  that 
the  plaintiff's  counsel  submitted  all  the  papers  in  the  case 
to  the  defendant's  counsel,  calling  his  attention  to  them 
severally,  and  asking  him  if  he  had  any  objection  to  their 
being  sent  to  the  jury-room,  and  he  made  no  other  reply 
than  that  he  objected  to  all  of  them.  The  fact  that  among 
these  papers  were  depositions,  parts  of  which  had  been  ex- 
cluded by  the  court,  afforded  no  ground  for  a  new  trial ; 
since,  in  the  view  the  Supreme  Court  took  of  it,  the  circum- 
stances under  which  they  were  delivered  to  the  jury  were 
such  that  fault  might  justly  be  imputed  to  the  defendant  him- 
self.    His  attention  was  severally  called  to  the  papers,  and 

1  Foster  v.  McO'Bleuis,  18  Mo.  88,  91.  We  may  rest  this  statement  of 
doctrine  on  tlie  case  of  Coster  v.  Merest,  3  Brod.  &  Bing.  272,  Here 
Vaiiglian.  Serjt.,  obtained  a  rule  nisi  for  a  new  trial,  on  an  affidavit  which 
stated  that  handbills  retlectino-  on  the  plaintiff's  character  had  been  dis- 
tributed in  court  at  the  time  of  the  trial,  and  had  been  seen  by  the  jury. 
Lens,  Serjt.,  who  showed  cause  against  the  rule,  offered  affidavits  from 
all  the  jurors  that  no  such  placards  had  been  shown  to  them;  and  though 
he  admitted  that,  in  general,  affidavits  on  the  subject  of  the  cause  could 
not  be  received  from  jurymen,  yet  he  urged  that,  as  in  the  present  case 
no  answ^er  could  be  given  to  the  plaintiff's  statement,  except  by  sucli  affi- 
davits, they  ought  to  be  received.  But  the  court  refused  to  admit  the 
affidavits,  thinking  it  might  be  of  pernicious  consequence  to  receive  such 
affidavits  in  anj^  case,  or  to  assume  that  the  jury  had  been  unduly  in- 
fluenced; and  though  the  defendant  denied  all  knowledge  of  the  hand- 
bills, they  made  the  rule  absolute. 

2  Watson  V.  Walker,  23  N.  H.  472,  497;  Little  Schuylkill  Nav.  Co.  v. 
Kichards,  57  Pa.  St.  142,  148;  Greff  v.  Blake,  16  Iowa,  222;  Davenport 
V.  Cummings,  15  Iowa,  219;  Littletield  v.  Beamis,  5  Rob.  (La.)  145;  Mc- 
Donald V.  Hodge,  5  Hayw.  85;  Shomo  v.  Zeigler,  10  Phila.  611;  Shields 
V.  Guffej',  9  Iowa,  322;  Langworthy  v.  Myers,  4  Iowa,  18. 

3  Turner  v.  Kelley,  10  Iowa,  573;  Shields  v.  Guffey,  9  Iowa,  322. 


500         BOOKS  AND  PAPERS  IN  THE  JL'KY-KOOM.   [CH.  XIX. 

he  made  no  other  objection  than  one  which,  from  its  com- 
prehensiveness, he  himself  might  l)e  presumed  to  have  con- 
sidered frivolous.  "  His  ol)jection,  on  notice,  should  have 
been  prompt  and  intelli«rible  ;  indicating  at  once  actual  oppo- 
sition in  his  own  mind,  and  an  undoubted  purpose  of  making 
it  known  at  the  moment."  ^  It  is  not  enough  for  counsel 
to  show  in  support  of  a  motion  for  a  new  trial,  that  a  par- 
ticular paper  was  sent  to  the  jury  by  the  adverse  party 
without  his  knowledge.  It  is  his  duty  to  ascertain  what 
papers  are  sent  to  the  jury  before  they  leave  the  court ;  and 
no  motion  for  a  new  trial  should  be  allowed  merely  because 
this  duty  has  been  neglected.  It  should  appear  that  the 
counsel  used  due  care  that  none  but  proper  papers  were 
passed  to  the  jury,  and  that  the  paper  in  question  was  sent 
to  the  jury  by  some  mistake,  or  through  some  trick  or 
artifice  of  the  opposite  counsel.'^  It  is  not  the  duty  of  one 
counsel  in  a  case  to  w'atch  the  ojjposite  counsel  to  see 
that  he  does  not  send  any  improper  papers  to  the  jury."^ 
"Where  the  paper  which  the  jury  took  was  a  deposition 
which  had  been  offered  in  evidence  by  the  counsel  for 
the  party  complaining,  there  was,  of  course,  no  ground  for 
a  new  trial.*  If  a  paper  which  is  peculiarly  the  })roperty 
of  one  of  the  counsel,  such  as  his  notes  of  the  testimony,, 
gets  to  the  jury,  there  is  a  presumption  that  he  gave  it  to 
them  intentionally.^ 

§  3!'9.  Where  the  Court  has  instructed  the  Jury  to  dis- 
regard the  Paper. —  Where  a  [)articular  paper  is  read  to  the 
jury,  and  the  court  afterwards  instructs  the  jury  to   disre- 


1  Kent  V.  Tyson,  20  X.  II.  121,  127.  This  rule  is  in  conformity  vvitb 
the  principle  tliat  a  general  objection  to  the  instructions  which  the 
court  has  given  to  tlie  jury  goes  for  naught,  if  any  one  of  tliein  is  good. 
Johnston  V.  Jones,  1  Bhick,  20'J;  Rogers  v.  The  Marsliall,  1  Wall.  645, 
654;  Harvey  v.  Tyler,  2  Wall.  328;  Hunt  v.  Maybee,  7  N.  Y.  273;  Decker 
v.  Mathews,  12  N.  Y.  313. 

2  Maynard  v.  Fellows,  43  X.  II.  2.55,  250. 

3  Flanders  v.  Davis,  19  X.  II.  139,  149.  In  this  case  the  duty  of  coun- 
sel with  reference  to  this  matter  is  discussed. 

*  Davenport  v.  Cummins,  15  Iowa,  219. 
«  Durfee  v.  Eveland,  8  Barb.  46. 


>§   399.]    JURY  INSTRUCTED  TO  DISREGARD  THE  PAPER.  50 1 

gard  it,  as  having  no  bearing  on  the  case,  but  nevertheless, 
the  court,  under  objection,  permits  it  to  be  taken  by  the 
jury  with  the  other  papers  in  the  case,  a  new  trial,  it  has 
been  held,  will  not  be  granted.^  Where  a  paper,  not  in 
evidence,  accidentally  gets  to  the  jury,  and,  as  soon  as  the 
fact  is  discovered,  the  court  instructs  them  to  disregard  it, 
it  will  be  presumed,  unless  the  case  was  extraordinary,  that 
they  did  so.-  In  a  case  in  Georgia,  a  brief  of  the  testi- 
mony taken  on  a  former  trial  was  taken  out  by  the 
jury.  This  matter  contained  the  testimony  of  a  witness 
now  dead,  which  was  given  on  a  former  trial,  and  which  was 
verified  by  a  witness  who  heard  it.  No  part  of  it,  except 
that  which  contained  the  testimony  of  this  deceased  witness 
was  read  to  them  as  evidence,  and  the  court  instructed  them 
at  the  time  that  none  of  it  but  that  portion  was  evidence. 
Two  of  the  jurors  swore  that,  in  making  up  their  verdict,  the 
jury  did  not  regard  this  brief  of  evidence,  and  one  swore  that 
it  was  not  read  at  all  in  the  jury  room.     It  was  held  that  the 


1  In  this  case  the  defendiint  read  in  evidence,  without  objection,  a 
submission  of  all  matters  of  difference  between  the  parties  to  arbitration, 
He  also  offered  in  evidence  a  copy  of  an  award  made  in  pursuance  of 
said  submission,  which  was  objected  to  by  the  plaintiff  and  excluded  by 
the  court.  He  also  offered  parol  evidence  to  prove  an  award,  which  was 
objected  to  by  the  plaintiff  and  excluded  by  the  court.  The  court,  in 
charging  the  jury,  directed  them  to  consider  the  case  upon  the  several 
matters  of  defense  relied  upon,  aside  from  the  submission  and  award,  and 
told  them  that  the  submission,  not  being  followed  by  proof  of  an  award 
made,  constituted  no  defense;  and  the  charge  was  not  excepted  to  by 
either  party.  After  the  charge,  and  when  the  counsel  were  selecting 
the  papers  to  be  delivfred  to  the  jury,  the  counsel  for  the  plaintiff  ob- 
jected to  the  submission  being  permitted  to  go  to  the  jury;  but  the 
court  permitted  it  to  be  takt'u  b.y  the  jury  with  the  other  papers  in  the 
case;  and  to  this  the  plaintiff  excepted.  The  jury  returned  a  verdict 
for  the  defendant.  In  the  opinion  of  the  court.  Redfield,  J.,  among 
other  things  said  :  "  Courts  at  the  present  daj'^  consider  jurors  as  ra- 
tional beings,  and  capable  of  following  plain  instructions,  and  willing 
to  do  so;  and  do  not  suppose  that  one  word  more  or  less,  even  of  in- 
competent testimony,  is  incapable  of  being  so  expunged  from  the  case 
as  not  to  intluence  the  event."    Warden  v.  Warden,  22  Vt.  563. 

2  State  V.  Bradley,  G  La.  An.    5G0. 


502  BOOKS  AND  TAPEUS  IN  THE  JURY-KOOM .      [cil.   XIX. 

seiidinir  out  of  this  paper  with  the  jury,  though  irregular^ 
was  not  sufficient  ground  for  a  new  trial.' 

But,  notwithstanding  the  respect  whi(;h  is  due  to  the  opin- 
ions of  these  courts,  the  correctness  of  the  rule  thus  laid 
down  cannot  he  conceded.  The  natural  curiosity  of  jurors 
will  prompt  them  to  read  papers  which  they  are  allowed 
to  have  in  their  room,  although  the  court  may  admonish 
them  not  to  do  so,  or  not  to  regard  them  as  evidence  ;  and  if 
such  papers  have  a  tendency  to  prejudice  the  party  against 
whom  the  jury  give  their  verdict,  it  seems  clear  that  per- 
mitting them  to  have  access  to  them  ought  to  be  ground  for 
a  new  trial.  This  rule,  like  all  others  which  we  are  consid- 
ering, will  be  of  especial  force  in  capital  cases.  Accordingly 
it  was  held  in  Arkansas  that  it  was  error  for  the  court  to 
permit  the  jury  in  a  capital  case,  when  retiring  to  consider 
of  their  verdict,  to  take  with  them  for  any  purpose,  a  record 
containing  evidence  given  before  the  committing  magistrate, 
not  offered  in  evidence  on  the  trial,  though  the  court  in- 
structed them  that  they  must  not  read  said  record.^ 

§  400.  Such  Error  taken  Advantage  of  how. —  One 
court  has  held  that  the  mere  fact  that  a  paper  which  ought 
not  to  have  gone  to  the  jury  was  suffered  to  go  to  them  is  an 
error  in  law  or  wrong  decision  of  the  court,  which  cannot 
be  assisrned  for  error,  unless  the  court  had  its  attention 
drawn  to  it  and  actually  made  an  illegal  decision  to  which 
exception  was  taken,  and  the  same  was  inserted  in  the  bill 
of  exceptions.  It  is  no  more  than  ground  of  a  motion  for  a 
new   trial,  addressed  to  the  court  below.^     Another  court 


^  Riggins  V.  Browne,  12  G;i.  271,  277.  See  also  Foster  v.  McO'Blenis, 
18  Mo.  88,91. 

2  Atkins  v.  State,  IC  Ark.  508,  .591. 

SHopkinson  v.  Steel,  12  Vt.  582;  Warden  v.  Warden,  22  Vt. 
563.  This  is  well  illnstrated  by  a  case  in  Missouri,  where  the  court  per- 
mitted a  deposition  to  be  sent  to  the  jury  which  had  been  read  during 
the  trial,  parts  of  which  had  been  ruled  out.  The  deposition  sent  to  the 
jury  was  accompanied  by  an  instruction  from  the  court  that  the  part 
marked  •'  ruled  out,"  was  no  evidence  for  anj-  purpose  whatever  in  the 
cause.  Xo  exception  was  taken  to  this  action,  nor  did  it  appear  what 
was  the  character  of  the  part  of  the  deposition  ruled  out.     For  this  rea- 


§    402.]  RULE  UNDER  PARTICULAR  AMERICAN  STATUTES.         503 

has  held  that  such  an  action  on  the  part  of  the  court  is  not 
a  subject  of  exception,  since  ( under  the  rule  obtaining  in  that 
State),  it  is  a  matter  of  discretion  with  the  court  to  let  the 
jury  take  out  papers  or  not ;  and  that  whether  the  discretion 
was  exercised  to  the  prejudice  of  the  losing  party  involves 
an  inquiry  of  fact  which  can  only  be  made  by  motion  sup- 
ported and  opposed  by  affidavits.^ 

§  401.  Recalling  the  Jury  and  Delivering  Papers  to 
them. —  Subject  to  certain  limitations,  Avhich  it  is  unneces- 
sary to  state  here,  the  judge  may,  of  his  own  motion,  recall 
the  jury  aud  deliver  additional  instructions  to  them.^  For 
the  same  reason,  if,  by  accident  the  jury  have  omitted  to 
take  with  them  papers  which  they  ought  to  consider  in  their 
room,  the  judge  may,  in  his  discretion,  recall  them  and  give 
them  such  papers.^  And  although  private  communications 
between  the  judge  and  jury  are  not  tolerated  by  the  law,  and 
are  generally  ground  for  a  new  trial,^  yet  no  reason  is  per- 
ceived why  the  judge  might  not  with  propriety,  send  such 
papers  to  the  jury  room  by  the  officer. 

§  402.  Rules  under  particular  American  Statvites. —  In 
several  of  the  States  the  subject  of  this  chapter  is  regulated 
by  statute. 

(1.)  In  Civil  Cases. —  Thus,  in  Alabama,  in  civil  cases,, 
the  jury,  on  retiring  for  deliberation,  may  take  with  them 
"  all  instruments  of  evidence  and   depositions  read  to  the 


son  the  Supreme  Court  could  not  see  tluit  it  influenced  tlie  jury  in  find- 
ing their  verdict.     Foster  v.  McO'Blenis,  18  Mo.  88. 

1  Hovvlaud  V.  Willetts,  5  Sandf.  219.  Tliis  course  Avas  pursued  ia 
Hackley  v.  Hastie,  3  Jolins.  252,  in  wliiclx  case  the  jury  liad  carried  out 
witli  tliem  certain  depositious.  The  court  denied  the  motion  because  it 
was  shown  by  the  affidavits  of  several  of  tlie  jury  that  the  deposition 
had  not  been  read  by  the  jurymen.  In  State  v.  Tindall,  10  Ricli.  L. 
212,  an  important  paper  went  to  the  jury  by  accident.  The  court  re- 
fused to  liear  an  affidavit  of  the  jury  to  the  effect  that  it  had  been  read, 
by  the  jury,  and  a  new  trial  was  refused.     See  post,  §  440. 

2  Thomp.  "•  Charging  the  Jury,"  §  99. 

3  Flanders  v.  Colby,  28  N.  H.  3-1.  39. 

*  Thonip.  "  Charging  the  Jury,'*  §  99,  p.  133;  ante.  §  §  355,  et  seq. 


504  BOOKS  AND  PAPERS  IN  THE  Jl  KY-KOOM.      [cil.  XIX. 

jury ;  "  ^  in  California,-  and  Nevada,'^  "all  papers  which 
have  been  received  as  evidence  in  the  cause,  except  deposi- 
tions, or  copies  of  such  papers,  as  ought  not,  in  the  oi)inion 
of  the  court,  to  be  taken  from  the  person  having  them  in 
possession  ;  "  al.>^o  "  notes  of  the  testimony  or  other  pro- 
ceedings on  trial,  taken  by  themselves  or  any  of  them,  but 
none  taken  by  any  other  person;"  in  Colorado,  **  all 
papers,  except  depositions,  accounts,  or  account  books, 
which  have  been  received  as  evidence  in  the  case,  or  copies  of 
such  papers  as  ought  not,  in  the  opinion  of  the  court,  to  be  ta- 
ken from  the  person  having  them  in  possession  ;  "  also  "  notes 
of  the  testimony  or  other  proceedings  on  the  trial  taken  by 
themselves,  or  any  of  them,  but  none  taken  by  any  other 
person;'"'*  in  Delaware,  "papers  read  in  evidence  to  the 
jury,  although  not  under  seal,  except  depositions  ; '"  in  Illinois, 
instructions  which  have  been  given  to  the  jury  in  writing;" 
also  "papers  read  in  evidence  other  than  depositions;"^ 
in  Iowa,  "  all  books  of  accounts,  and  all  papers  which  have 
been  received  as  evidence  in  the  cause,  except  depositions, 
which  shall  not  be  so  taken,  unless  all  the  testimony  is  in  writ- 
ing, and  none  of  the  same  has  been  ordered  to  be  struck 
out ;"  ^  in  Minnesota,  "  all  papers,  except  depositions,  which 
have  been  received  as  evidence  in  the  cause,  or  copies  of  such 
parts  of  public  records  or  private  documents  given  in  evi- 
dence, as  ought  not,  in  the  opinion  of  the  court,  to  be  taken 
from  the  person  having  them  in  possession;"  also  "notes 
of  the  testimony  or  other  proceedings  on  the  trial,  taken  by 
themselves,  or  any  of  them,  but  none  taken  l)y  any  other 
2)erson : "  ^    in   New  Jersey,    "papers    read    in    evidence, 

iz',la.  Code  of  1S7G,  §3023. 
•    2  Cal.  Code  Civil  Froc,  §  G12. 
5  Comp.  Laws  Nev.  1873,  §  1230. 
^  Colo.  Code  Civil  Proc,  §  172. 
^  Del.  Rev.  Code,  p.  GJ9,  §  2G. 
« 111.  Eev.  Stats.  1880,  p.  703,  §  55. 
7/6t(Z.,  §56. 

8  Rev.  Code.  Iowa,  1880,  §  27!J7.     See   reterson  v.  Haiigen,  34  Iowa, 
395. 

9  Miim.  Stats,  at  Large,  1873,  p.  Sl-L  §  158. 


§    402.]  RULE  UNDER  PARTICULAR  AMERICAN  STATUTES.  505 

though  not  under  seal  ;  "  ^  in  Oregon,  "  the  pleadings  in  the 
cause,  and  all  papers  which  have  been  received  as  evidence 
on  the  trial,  except  depositions,  or  copies  of  such  parts  of 
pul)lic  records,  or  private  documents  given  in  evidence,  as 
ought  not,  in  the  opinion  of  the  court,  to  be  taken  from  the 
person  having  them  in  possession  ;  "  also  "  notes  of  the 
testimony  or  other  proceedings  on  the  trial  taken  hy  them- 
selves, or  any  of  them,  but  none  taken  by  any  other  per- 
son ;  "  ^  and  in  Texas,  "  the  charges  and  instructions  in  the 
cause,  the  pleadings  and  any  written  evidence,  excei)t  the 
depositions  of  witnesses  ;  but  when  part  only  of  a  paper 
has  been  read  in  evidence,  the  jury  shall  not  take  the  same 
with  them,  unless  the  part  so  read  to  them  is  detached 
from  that  which  was  excluded."  ^  In  Maine,  there  is  this 
provision:  "  If  either  party  *  *  *  purposely  introduce 
among  the  papers  in  the  case  wdiich  are  delivered  to  the 
jury  when  they  retire  with  the  cause,  any  papers  which 
have  any  connection  with  it,  but  were  not  offered  in  evi- 
dence, the  court,  on  motion  of  the  adverse  party,  may  set 
aside  the  verdict  and  order  a  new  trial."  * 

(2.)  In  Criminal  Cases. —  In  Arkansas,  in  criminal 
cases,  the  jury,  on  retiring  for  deliberation,  may  take  with 
them  "all  papers  which  have  been  received  as  evidence  in 
the  cause  ;^  in  California,  "all  papers,  except  deposi- 
tions, which  have  been  received  as  evidence  in  the  cause, 
or  Copies  of  such  public  records  or  private  documents,  given 
in  evidence,  as  ought  not,  in  the  opinion  of  the  court,  to  be 
taken  from  the  person  having  them  in  possession  j"  also 
"  the  Avritten  instructions  given,  and  notes  of  the  testimony, 
or  other  proceedings  on  the  trial,  taken  by  themselves,  or 
any  of  them,  but  none  taken  by  any  other  person;"^  in 
Iowa,  "  all  papers  which  have  been  received  as  evidence  in 

1  X.  J.  Rev.  1877,  p.  876,  §  182. 

2  Gen.  Laws,  Oreg.  1872,  p.  146,  §  202. 

3  Rev.  Stats.  Tex.  1879,  Art.  1303. 

*  Rev.  Stats.  Me.  1871,  p.  6.50,  §  79. 

5  Ark.  Dig.  Stats.  1874,  §  1942. 

6  Cal.  Peual  Code,  §  1137. 


506  BOOKS  AND  PAPERS  IN  THE  JUUY-ROOM.      [cil.  XIX. 

the  case,  except  depositions,  and  copies  of  such  parts  of 
public  records  or  private  documents  as  ought  not,  in  the 
opinion  of  the  court,  to  be  taken  from  the  person  having 
them  in  possession  ;"  ^  also  "  notes  of  the  testimony  or 
other  proceedings  on  the  trial,  taken  b}'  themselves,  or  any 
of  them,  but  none  taken  by  any  other  person  ;"  ^  in  Ken- 
tucky, "  all  papers  and  other  things  which  have  been  re- 
ceived as  evidence  in  the  cause ;"  ^  in  Minnesota,  "all 
papers  which  have  been  received  as  evidence  in  the  cause, 
or  copies  of  such  parts  of  pul)lic  records  or  private  docu- 
ments, given  in  evidence,  as  ought  not,  in  the  opinion  of 
the  court,  be  tnhcn  from  the  pcison  having  them  in  posses- 
sion ;  "  also  "notes  of  the  testimony,  or  other  proceed- 
ings on  the  trial,  taken  by  themselves  or  any  of  them,  but 
none  taken  by  any  other  person  ;  "  ^  in  Nevada,  "  all  papers, 
except  depositions,  which  have  been  received  as  evidence  in 
the  case,  or  copies  of  such  parts  of  public  records  or  pri- 
vate documents  given  in  evidence,  as  ought  not,  in  the 
opinion  of  the  court,  to  be  taken  from  the  person  having 
them  in  possession  ;  and  also  the  instructions  of  the 
court ;  "  ^  also  "  notes  of  the  testimony  or  other  proceed- 
ings on  the  trial,  taken  by  themselves,  or  any  of  them,  but 
none  taken  In'  any  other  person;"'^  in  New  York,  "any 
paper  or  article  which  has  been  received  as  evidence  in  the 
cause,  but  only  upon  the  consent  of  the  defendant  and  the 
counsel  for  the  people  ;  "  '  also  "  notes  of  the  testimony  or 
other  proceedings  on  the  trial,  taken  by  themselves,  or  any  of 
them,  but  none  taken  by  an}^  other  person  ;  "  ^  in  Oregon, 
the  same  as  in  civil  cases  ;  ^  in  Texas,  "  the  charges  given  by 
the  court,  after  the  same  have  been  tiled  ;  but  they  shall  not 

J  Rev.  Code,  Iowa,  1880,  §  4452. 

2/5W..§44r)3. 

3  Bullitfs  Ky.  Ci-ini.  Code,  §  248. 

*  Minn.  Stats,  at  Large,  187:^  p.  1059,  §  264. 

5  Conip.  L.,  Nev.  1873,  §  2017. 

•Ibid.,  §  2018. 

7  N.  Y.  Code  Crim.  Tioc.  (Laws  1881,  Cli.  442),  §  425. 

« Ibid.,  §426;  ante,  snbsee.  2. 

9  Gen.  Laws,  Oreg.  1872,  p.  360,  §  157.     See  tlie  preceding  snbsection. 


§   402.]  RULE  UNDER  PARTICULAR  AMERICAN  STATUTES.         507 

be  permitted  to  take  with  them  any  charge  or  portion  of  a 
chai-o-e  that  has  been  asked  of  the  court  and  which  the 
court  has  refused  to  give  ;  "  ^  also  "  all  the  original  papers 
in  the  cause,  and  any  papers  used  as  evidence."  ' 

1  Texas  Code  Crim.  Proc,  1879,  Art.  684. 

2  Ibid.,  Art.  G93.     See  Heard  v.  State,  9  Tex.  App.  1. 


508  VERDICT  BY  LOT.  [CH.  XX. 


CHAPTER   XX. 


OF   IMPROPER  METHODS  OF  ARRIVING  AT  A  VERDICT. 

SECTION. 

408.  Verdict  by  Lot. 

409.  The  Quotient  Verdict  Tllegal. 

410.  But  only  when  adopted  by  a  previous  Agreement. 

411.  Anotlier  Statement  of  the  Rule. 

412.  The  Expediencj'  of  such  Computations  denied  and  defended. 

413.  Cases  within  the  Rule. 

414.  This  Misconduct  of  the  Jury  how  shown. 
41.5.  (Continued.) — How  under  Statutes. 

410.     Kxijcrimenting. 

417.  i'rivate  Search  of  .Turors  for  Evidence. 

418.  Compromise  Verdicts. 

§  408.  Verdict  by  T^ot. —  The  old  reports  ftiriiisli  aii  in- 
stance where  the  jury,  being  equally  divided  in  opinion, 
ojinie  to  an  agreement  by  lot,  and  this  method  was  approved 
b}-  the  court.  T\vo  sixpences  were  put  into  a  hat,  from 
which  the  officer  having  the  jury  in  charge  drew  one  out, 
and  the  verdict  went  accordingly.  Windham,  J.,  said: 
"This  is  as  good  a  way  of  decision  as  by  the  strongest 
body,  which  is  the  usual  way,  and  is  suitable  in  such  cases 
to  the  law  of  God."  ^  But  with  the  disappearance  of  the 
wnger  of  battle,  such  methods  found  no  justification  in  the 
eyes  of  the  judges;  and  later  ac  find  many  examples  of 
verdicts  set  aside  where  it  appeared  that  they  had  been  ob- 
tained by  throwing  up  "  cross  and  pile,"  hustling  half 
pence  in  a  hat,  and  by  casting  lots.'^     Nay,  more,  such  con- 

1  Prior  V.  Powers,  1  Keble.  Sll,  pi.  (87).     Twisden,  J.,  doubted. 

2  Foy  V.  Harder,  3  Keble,  805;  Fry  v.  Hardy,  Sir  T.  Jones,  83;  Philips 
V.  Fowler,  Comyns.   525;  s.  c,  Barnes'  Xotes,  441;  Rex  v.  Lord  Fitz- 


§  409.]        THE  "quotient"  verdict  illegal.  509 

duct  was  denounced  as  a  very  high  misdemeanor,'  Avhich 
the  court,  upon  an  information,  punished  severely,  as  ap- 
pears from  the  casual  statement  in  Keble,  that  the  punish- 
ment "  broke  Sir  James  Altham's  heart,  one  of  the  jury  in 
the  case  of  Lord  Fitz water. "  ^  It  is  needless  to  add  that 
such  verdicts  were  never  defended  in  this  country.^ 

§  409.  The  «•  Quotient "  Verdict  Illegal.  —  Closely 
allied  to  these  objectionable  verdicts  is  the  "quotient" 
verdict,  so  called  from  the  fact  that  the  jurors,  having 
agreed  to  find  for  the  plaintiff,  further  agree  that  their  ver- 
dict shall  be  in  such  sum  as  is  ascertained  by  each  juror 
privately  marking  down  the  sum  of  money  to  which  he 
thinks  the  plaintiff  entitled,  the  total  of  these  sums  being 
divided  by  twelve.  This  method  of  arriving  at  a  conclu- 
sion is  most  common  in  actions  for  unliquidated  damages, 
but  it  sometimes  crops  out  in  criminal  cases,  where  the 
jury  have  to  determine  the  duration  of  imprisonment  as  the 
punishment  of  the  defendant."*  This  means  of  reaching  a 
conclusion  is  exceedingly  common,  and  is  almost  universally 
condemned.  The  ground  of  objection  to  the  jurors  bind- 
ino;  themselves  in  advance  to  the  amount  to  be  determ- 
ined  by  addition  and  division  by  twelve  is,  that  such 
an  agreement  cuts  off  all  deliberation  on  the  part  of  the 
jurors,  and  places  it  in  the  power  of  a  single  juror  to  make 
the  quotient  unreasonably  large  or  small  by  naming  a  sum 
extravagantly  high  or  ridiculously  low.^ 

water,  2  Lev.  140;    Foster  v.  Hawdeii,  2  Lev.   205;  Mellish  v.  Arnold, 
Bunbury,    51;  Hale  v.  Cove,    Strange,    642;  Parr   v.  Seames,  Barnes' 
Notes,  438;  Aylett  v.  Jewel,  2  W.  Bl.  1299. 
^  Per  Lord  Mansfield  in  Vasie  v.  Delaval,  1  T.  E.  11. 

2  3  Keble,  805,  pi.  (11). 

3  Warner  v.  Robinson,  1  Root,  194;  (Jovvperthwaite  v.  Jones,  2  Dall. 
55;  Donner  v.  Palmer,  23  Cal.  40;  Mitchell  v.  Elile,  10  Wend.  595; 
Boynton  v.  Trumbull,  45  N.  H.  408;  Levy  v.  Brannan,  39  Cal.  485. 

< Thompson  v.  Com.,  8  Gratt.  637;  Joyce  v.  State,  7  Baxt.  273;  Crab- 
tree  V.  State,  3  Sneed,  302;  Leverett  v.  State,  3  Tex.  App.  213;  Hunter 
V.  State,  8  Tex.  App.  75;  Dooley  v.  State,  28  Ind.  239;  State  v.  Bran- 
setter,  65  Mo.  149. 

*  See,  for  example,  Parham  v.  Harney,  6  Smed.  &  M.  .55,  where  the 
amounts  named  bj^  the  jui-ors  ranged  from  $30.00  to  $10,000.00. 


510  WHEN  ADOPTED  RY  A  PREVIOUS  AGREEMENT.    [CII.  XX. 

§  410.  But  only  Avlieii  adopted  by  a  previous  Agreement. 

—  The  objections  just  noticed  are  wholly  obviated  where 
the  calculation  is  purely  informal,  for  the  purpose  of  ascer- 
taining the  sense  of  the  jury,  and  every  juror  feels  at  lib- 
erty to  accei)t,  reject,  or  (jualify  the  result  according  to  his 
convictions.  Under  such  circumstances  the  jury  may 
adopt  as  their  verdict  the  exact  quotient  found,  and  it  will 
be  good.^  Hence  the  general  rule  is  that,  in  actions  for 
unliquidated  damages,  "a  quotient"  verdict  is  illegal  only 
where  the  jurors,  having  determined  upon  this  mode  of 
finding  their  verdict,  further  agree,  ])efore  the  computation 
is  made,  to  abide  by  the  contingent  result  at  all  events, 
without  reserving  to  themselves  the  liberty  of  dissenting.^ 
And  the  same  rule  is  adopted  in  criminal  cases,  where  the 
jury  have  taken  this  means  of  fixing  the  quanlum  of  pun- 
ishment.^ 

iGrinnell  v.  Phillips,  1  Mass.  529;  Daua  v.  Tucker,  4  Johus.  487; 
Bennett  v.  Baker,  1  Humph.  399;  Harvey  v.  Jones,  3  Humph.  157; 
Turner  v.  Tuolumne  Co.,  25  Cal.  397;  Papinean  v.  Belgarde,  81  111.  Gl ; 
Barton  v.  Holmes.  IG  Iowa,  252;  Deppe  v.  Chicago,  etc.R.  Co..  38  Iowa, 
592;  Kennedy  v.  Kennedy,  IS  N.  J.  L.  450;  Guard  v.  Risk,  11  Ind.  156. 

2  Smith  V.  Cheetham,  3  Caines,  57;  Dana  v.  Tucker,  4  Johns.  487; 
Bennett  v.  Baker,  1  Humph.  399;  Ellcdge  v.  Todd,  1  Humph.  43;  John- 
son V.  Perry,  2  Humph.  569,  574;  AVilson  v.  Berryman,  5  Cal.  44;  Tur- 
ner v.  Tuolumne  Co.,  25  Cal.  397;  Ruble  v.  McDonald,  7  Iowa,  90; 
Schanler  v.  Porter,  7  Iowa,  482;  Denton  v.  Lewis,  15  Iowa,  301;  Barton 
V.  Holmes,  16  Iowa,  252;  Wright  v.  Illinois,  etc.  Tel.  Co.,  20  Iowa,  195; 
Hendrickson  v.  Kingsbury,  21  Iowa.  379;  Fuller  v.  Chicago,  etc.  R. 
Co.,  31  Iowa,  211;  Hamilton  v.  Des  Moines  Valley  R.  Co.,  36  Iowa,  31; 
Illinois,  etc.  R.  Co.  v.  Able,  59  HI.  131;  Dorr  v.  Fenno,  12  Pick.  521; 
Com.  V.  Wright,  1  Cush.  4G;  Parham  v.  Harney,  G  Smed.  &  M.  55;  Ken- 
nedy V.  Kennedy,  18  N.  J.  L.  450;  Sawyer  v.  Hannibal,  etc.  R.  Co., 
37  Mo.  240;  Harvey  v.  Rickett,  15  Johns.  87;  Mulock  v.  Lawrence, 
5  City  Hall  Rec.  84;  Conklin  v.  Hill,  2  How.  Pr.  6;  Forbes  v.  Howard, 
4  R.  I.  364;  St.  Martin  v.  Desnoyer,  1  Minn.  156;  Ilandley  v.  Leigh,  8 
Tex.  129;  Cheney  v.  Holgate,  Brayton,  171;  Fowler  v.  Colton,  Burnett, 
175;  s.  c,  1  Pinney,  331;  Chandler  v.  Barker.  2  Harr.  (Del.)  387;  Lee  v. 
Clute,  10  Nev.  151.  But  see  Roberts  v.  Failis,  1  Cow.  238;  Cowper- 
thwaite  v.  Jones,  2  Dall.  55;  Heath  v.  Conway,  1  Bibb.  398;  Zuber  v. 
Geigar,  2  Yeates,  522. 

»  Crabtree  v.  State,  3  Sneed,  302;  Leverett  v.  State,  3  Tex.  Api).  213; 
Hunter  v.  State,  8  Tex.  App.  75;  Warren  v.  State,  9  Tex.  App.  619; 
Cochlin  V.  People,  93  111.410;  .s.  c,  10  Reporter.  422;  State   v.    Bran- 


§   411.]  ANOTHER  STATEMENT  OF  THE  RULE.  511 

§  411.  Another  Statement  of  the  Rule. —  This  rule  is 
sometimes  stated  in  another  form,  namely,  that  if,  after  the 
computation  is  made,  the  jury  all  agree  to  it,  the  verdict  is 
good.  This  statement  is  very  misleading,  because  it  as- 
vsumes  that  it  is  entirely  immaterial  whether  or  not  there 
has  been  a  previous  agreement  to  be  bound  by  the  result  of 
the  computation.  This  leads  a  court  or  counsel  to  throw 
out  the  query  whether  such  assent  is  not  shcnvn  in  a  case 
where  the  jury  are  polled.^  And  some  courts  seem  to  hold 
that  the  verdict  cannot  be  impeached  upon  this  ground  when 
this  express  assent  to  it  appears.^  It  is  apparent  from  an 
early  decision  of  the  Kentucky  Court  of  Appeals,  that  the 
court  fell  into  such  perplexity  over  this  erroneous  state- 
ment of  the  rule,  that  it  was  led  into  the  further  error  of 
asserting  that  jurors  might  pledge  themselves  in  advance  of 
the  computation  to  be  bound  by  it,  and  the  verdict  would  be 
permitted  to  stand,  if  subsequently  assented  to  and  other- 
wise unobjectionable."^  "  In  some  of  the  books,"  said 
Bibb,  J.,  "  it  is  said  that  if  the  jurors  previously  agree  to 
abide  by  the  sum  so  produced,  the  verdict  is  bad,  but  if, 
after  the  result  is  known,  they  do  agree  to  it,  the  verdict  is 
good.  This  seems  very  much  like  a  distinction  where  no 
difference  in  practice  can  exist ;  for,  after  the  result  is 
known,  and  the  jurors  are  called  upon,  in  the  words  of  the 
ancient  and  yet  prevailing  form,  to  answer  to  the  verdict 
pronounced  by  the  foreman,  '  so  say  you  all  ; '  and  when 
the  verdict  so  delivered  and  thus  interrogated,  passes  with- 
out dissent,  it  seems  strange  that  the  court  should  set  it 
aside  because  the  jurors  had  not  agreed  to  it."  ^ 

These  remarks  show  a  misapprehension  of  the  true  dis- 
tinction. Where  jurors  by  a  previous  agreement  bind  them- 
selves to  accept  the  quotient  as  their  verdict,  any  subsequent 

stetter.   65  Mo.    149;  .Joyce  v.  State,  7  Caxt.   273;    Dooley  v.  State,  28 
liid.  239. 

1  Denton  v.  Lewis,  15  Iowa.  301. 

2  Pekin  v.  Winkel,  77  111.  5;],  58;  Willey  v.  Belfast,  01  Me.  569. 
•''  Heath  v.  Conway,  1  Bibb,  398,  399. 

^  Ibid.,  399. 


512  CASES  WITHIN  THE  RULE.  [CH.  XX. 

iissent  to  this  result,  however  solemnly  given,  is  made  under 
a  moral  constraint  which  justly  vitiates  the  verdict.  More- 
over, "the  dangerous  tendencies  of  such  a  practice,"  observed 
the  Kentucky  Court  of  Appeals,  in  a  later  case,  correcting 
its  earlier  decision,  "and  the  facilities  it  would  afford  for 
the  commission  of  fraud,  chicanery  and  trick,  l)y  an  adroit 
and  cunning  juror,  u])on  his  more  honest  and  confiding  fel- 
lows, furnish  conclusive  reasons  against  the  toleration  of 
such  a  practice."  ^ 

§  412.  The  Expediency  of  sucli  Computations  denied 
and  defended. —  There  is  an  obvious  danger  that,  when 
jurors  adopt  this  plan  of  coming  to  a  conclusion,  their 
agreement  nuiy  take  the  obnoxious  form  of  a  compact  to 
abide  the  result,  whatever  it  may  be.  This  possibility  led 
the  Supreme  Court  of  Iowa  on  one  occasion  to  reprobate 
the  innocent  practice  of  adopting  the  computation  by  way 
of  experiment  only.  In  the  language  of  Beck,  C.  J.  : 
"Though  the  plan  pursued  by  them  is  not  in  violation  of 
law,  it  trenches  closely  thereon,  and,  if  followed,  would 
soon,  by  imperceptible  degrees,  lead  to  the  very  method 
condemned  by  our  decisions.  It  is  barely  on  the  safe 
side.  Jurors  ought  to  avoid  such  dangerous  proximity 
to  the  violation  of  law."  ^  But  the  contrary  is  ably 
maintained  by  Thompson,  J.,  of  the  Virginia  Court  of  Ap- 
peals,^ and  in  Dorr  v.  Fenno  the  ojjinion  was  that  no  better 
mode  of  reaching  a  conclusion  could  be  adopted.* 

§  413.  Cases  within  tlie  Rule. —  Of  course,  any  other 
means  of  computation  involving  the  previous  assent  of  the 
jurors  to  be  bound  by  an  uncertain  result,  is  equally  as  ob- 
noxious to  the  law  as  that  producing  quotient  verdicts.  For 
example,  where  the  jury  agreed  that  to  tix  the  amount  of 
the  plaintiff's  damages,  each  juror  should  mark  a  sum,  and 
that  half  of  the  aggregate  of  the  highest  and  the  lowest 
sums  which  should  be  marked,  should  l)e   taken  for  such 

>  Allard  v.  Smith,  2  Mete.  (Ky.)  207,  HOI. 

2  Ilaiuilton  v.  Dos  Moines  Valley  K.  Co.,  36  Iowa,  31,  36. 

^Tlioinpson  v.  Coin.,  8  Gratt.  637. 

•»  12  rick.  521,  per  Morton,  J. 


§   414.]    THIS  MISCONDUCT  OF  THE  JURY  HOW  SHOWN.  513 

damages,  the  verdict,  made  up  and  returned  according  to 
this  agreement,  without  further  deliberation,  was  set  aside. ^ 
That  a  portion  only  of  the  jurors,  entered  into  an  agreement 
in  advance  of  the  computation,  to  be  bound  by  it,  or  that  a 
portion  believed  themselves  so  bound,  has  been  held  suffi- 
cient to  vitiate  the  verdict.^  Where  the  jurors  have  made  a 
previous  agreement  to  be  bound  by  the  result  of  the  com- 
putation, it  seems  that  this  vice  in  the  verdict  is  cured  if, 
by  a  subsequent  agreement,  they  alter  the  sum  found  as  a 
a  quotient,  and  return  this  as  their  verdict.^ 

§  414.  This  Misconduct  of  the  Jury  how  shown. —  We 
have  seen  that  the  early  reports  show  many  instances  of 
verdicts  annulled,  because  the  jury  had  resort  to  fortuitous 
methods  in  finding  themi.  In  many  of  these  cases  it  is  not 
clear  how  this  misconduct  of  the  jury  was  made  apparent  to 
the  court.  Nothing  is  better  settled,  as  a  general  proposi- 
tion, than  that  the  affidavits  of  jurors  are  not  admissible  to 
impeach  their  finding-*  How,  then,  shall  the  court  know  of 
their  misconduct,  when  a  gambling  verdict  has  been  returned  ? 
Lord  Mansfield  was  confronted  with  this  difficulty  in 
Vasie  v.  DelavalJ'  While  conceding  the  alleged  misconduct 
of  the  jurors  to  be  a  very  high  misdemeanor,  he  refused  to 
hear  affidavits  of  certain  of  the  jurors  in  proof  of  the  fact. 
"In  every  such  case,"  said  he,  "the  court  must  derive 
their  knowledge  from  some  other  source ;  such  as  from 
some  person  having  seen  the  transaction  through  a  window, 
or  by  some  such  other  means,"  The  difficulty  of  obtaining 
evidence  from  any  other  source  prompted  the  counsel  in  a 
later  case''  to  assail  the  authority  of   this  decision.     And 

1  Boynton  v.  Trumbull,  45  N.  H.  408.  See  also  People  v.  Barker,  2 
^Vheeler  Cr.  C.  19. 

*  Kuble  V.  McDonald,  7  Iowa,  90;  Johnson  v.  Hubbard,  22  Kan.  277. 

3  Cheney  v.  Holgate,  Brayton,  171 ;  Birchard  v.  Booth,  4  Wis.  G7 ; 
Shobe  V.  Bell,  1  Band.  39;  Thompson  v.  Com.,  8  Gratt.  637;  Cochlin  v. 
People,  93  111.  410;  s.  c,  10  Reporter,  422.  But  contra,  see  Dunn  v.  Hall, 
8  Blackf .  32. 

*  Post,  §  440. 
«1T.  R.  11. 

6  Owen  V.  Warburton,  1  Bos.  &  Pul.  (N.  R.)  32G. 

(33) 


514         IMr'KOI'KK  METHODS  OF  AKHIVINC;  AT  VEUDICT.  [CH.  XX. 

this  wjis  (lone  with  isonic  force  ;  for  it  appeared  that  there 
were  precedents  in  existence  at  the  time  of  the  decision  in 
l^rt^'/e  V.  y^^^Arya/,  not  brought  to  the  attention  of  the  court,, 
which  authorized  the  i-e('e})ti()n  of  affidavits  of  jurors  for  this 
purpose.^  However,  the  rule  as  dechired  in  that  case 
was  unshaken:  "It  is  singuUir  indeed,"  said  Sir  James 
jVIansfield,  C.  J.,  "  that  ahnost  the  only  evidence  of  which 
the  case  admits,  should  l)e  shut  out ;  but,  considering  the 
arts  which  might  be  used  if  a  contrary  rule  were  to  prevail, 
we  think  it  necessary  to  exclude  such  evidence.  If  it  w^re 
understood  to  be  the  law  that  a  juryman  might  set  aside  a 
verdict  hy  such  evidence,  it  might  sometimes  happen  that  a 
juryman,  being  a  friend  to  one  of  the  parties,  and  not  being 
able  to  bring  over  his  companions  to  his  opinion,  might 
propose  a  decision  by  lot,  with  a  view  afterwards  to  set 
aside  the  verdict  by  his  own  affidavit,  if  the  decision  should 
be  against  him."  ^  The  rule  as  settled  by  these  cases  is  gen- 
erally adhered  to  in  this  country/  The  contrary  has  been 
declared  in  some  States.*     The  early  decisions  in  New  York 

'Philips  V.  Fowler,  Barnes' Notes,  441;  Parr  v.  Seaines,  Id.  p.  438; 
Aylett  V.  Jewel,  2  W.  Bl.  1299. 

2  Owen  V.  Warbiirton,  1  Bos.  &  Piil.  (N.  R.)  326,  330.  See  also  Straker 
V.  Graham,  4  Mee.  &  W.  721;  s.  c,  7  Dowl.  P.  C.  223;  Burgess  v.  Lang- 
ley,  5  Man.  &  Gr.  722;  Harvey  v.  Hewitt,  8  Dowl.  P.  C.  598. 

3  Dana  v.  Tucker,  4  Johns.  487;  People  v.  Barker,  2  Wheeler  Cr.  C. 
19;  Wilson  v.  Berryman,  5  Cal.  44:  Turner  v.  Tuolumne  Co.,  25  Cal. 
397;  St.  Martin  v.  Desnoyer,  1  Minn.  156;  Dunn  v.  Hall,  8  Blackf.  32; 
Drummoncl  v.  Leslie,  5  Blackf.  4.53;  Pleasants  v.  Heard,  15  Ark.  403; 
Heath  v.  Conway,  1  Bibb,  398;  Birchard  v.  Booth,  4  Wis.  67;  Dorr  v. 
Fenno,  12  Pick.  521;  Boston,  etc.  R.  Co.  v.  Dana,  1  Gray,  83;  Sawyer  v. 
Hannibal,  etc.  R.  Co.,  37  Mo.  240;  Cluggage  v.  Swan,  4  Binn.  150; 
Handley  v.  Leigh,  8  Tex.  129;  Sheppard  v.  Lark,  2  Bailey,  576;  Cheney 
V.  Holgate,  Brayt.  171.  The  affidavit  of  one  not  of  the  jury  as  to  what 
one  or  more  jurors  told  him  in  regard  to  the  manner  of  making  up  the 
verdict,  is,  for  another  and  stronger  reason,  inadmissible.  Prior  v.  Pow- 
ers, 1  Keble,  811;  Goodwin  v.  Philips,  Lofft,  71;  Owen  v.  Warburton,  1 
Bos.  &  Pul.  (X,  R.)  326;  Straker  v.  Graham,  4  Mee.  &  W.  721 ;  Burgess  v. 
Langlej",  5  Man.  &  Gr.  722 ;  Drummond  v.  Leslie,  5  Blackf.  453 ;  Chandler 
v.  Barker,  2  Harr.  (Del.)  387;  Mulock  v.  Lawrence,  5  City  Hall  Rec.  84; 
Birchard  v.  Booth,  4  Wis.  67;  St.  Martin  v.  Desnoyer,  1  Minn.  156.  Pott, 
§  445. 

*  Smith  T.  Cheetham,  3  Caines,  57;   Grinnell  v.  Phillips,  1  Mass.  530; 


§  414.]    THIS  MISCONDUCT  OF  THE  JURY  HOW  SHOWN.  515 

and  Massachusetts  were  later  overruled  ;  ^  but  the  courts  of 
Tennessee  and  Kansas  remain  out  of  line  with  the  other 
authorities  upon  this  point.'"' 

The  affidavit  of  the  sheriff  or  constable  having  the  jury 
in  charge  is  admissible  to  show  misconduct  in  finding  their 
verdict,^  but  this  may  be  contradicted  by  affidavits  of  the 
jurors  showing  that  their  proceedings  were  regular.^  A 
statement  made  by  one  of  the  jurors  in  the  court  room, 
after  the  jury  had  delivered  their  verdict,  and  while  the 
jury  were  receiving  their  fees,  that  their  verdict  had  been 
decided  by  lot,  affords  no  ground  for  a  new  trial. ^  The 
mere  fact  that  a  paper  is  found  in  the  jury-roDm  after  the 
departure  of  the  jurors,  upon  which  is  a  computation  con- 
sisting of  twelve  sums  added  together,  the  total  being 
divided  by  twelve,  the  quotient  of  which  computation  cor- 
responds exactly  to  the  sum  rendered  in  the  verdict,  is  no 
evidence  of  misconduct  on  the  part  of  the  jury.  Non  con- 
stat that  there  was  a  previous  agreement  to  be  bound  by 
such  quotient.^ 

The  affidavit  of  one  who  deposed  that  he  listened  at  the 
door  of  the  jury  room  to  violent  altercations  of  the  jurors  ; 
that  he  heard  a  proposal  made  by  some  of  the  jury  to  draw 
lots  as  to  whether  the  verdict  should  be  for  the  plaintiff 

Johnson  v.  Husband,  22  Kan.  277;  Elledge  v.  Todd,  1  Humph.  43;  Ben- 
nett V.  Baker,  1  Humph.  399;  Crabtree  v.  State,  3  Sneed,  302;  Joyce  v. 
State,  7  Baxt.  273. 

1  Dana  v.  Tucker,  4  Johns.  487;  Dorr  v.  Fenno,  12  Pick.  521 ;  Boston, 
etc.  K.  Co.  V.  Dana,  1  Gray,  83. 

^Post,  §§440,  451,453. 

3  Fry  V.  Hordy,  Sir  T.  Jones,  83 ;  Burgess  v.  Langley,  5  Man.  Gr.  722, 
725,  per  Creswell,  J.;  Harvey  v.  Hewitt,  8  Dowl.  P.  C.  598;  Dana  v. 
Tucker,  4  Johns.  487;  Wilson  v.  Berrynian,  5  Cal.  45;  Dunn  v.  Hall,  8 
Blackf .  32 ;  Parham  v.  Harney,  6  Snied.  &  M.  55 ;  Kennedy  v.  Kennedy, 
18  N.  J.  L.  450;  Cheney  v.  Holgate,  Brayt.  171;  Birchard  v.  Booth,  4 
Wis.  67;  Illinois,  etc.   R.    Co.  v.  Able,  59  111.  131. 

<  Mellish  V.  Arnold,  Bunbury,  51 ;  Dana  v.  Tucker,  4  .Johns.  487;  Wil- 
son V.  Berrynian,  5  Cal.  44;  Papineau  v.  Belgarde,  81  111.  01;  Kennedy 
V.  Kennedy,  18  N.  J.  L.  450. 

5  Burgess  v.  Langley,  5  Man.  &  Gr.  722. 

6  Forbes  v.  Howard,  4  R.  I.  364;  Levcrett  v.  State,  3  Tex.  App.  213; 
Willey  V.  Belfast,  01  Me.  569. 


516         IMPROrER  METHODS  OF  ARRIVING  AT  VERDICT.  [CH.  XX^ 

or  defendant;  that  they  were  quiet  for  some  time,  and  then 
came  out  of  their  room  to  deliver  their  verdict,  after  which 
he  was  told  by  certain  of  the  jurors  that  the  verdict  was 
determined  by  lot  —  proves  nothing.^  An  affidavit  of  one 
of  the  parties  made  merely  on  information  and  belief,  that 
the  jurors  found  a  gambling  verdict,  is  no  ground  for  a 
new  trial.  The  affidavit  should  show  on  what  such  infor- 
mation and  belief  is  predicated.'^ 

§415.  (Continued.)  How  under  Statutes. —  In  some 
States  there  are  statutory  provisions  permitting  testimony  of 
jurors  to  be  introduced  on  a  motion  for  a  new  trial,  to  show 
that  the  verdict  was  made  by  lot.^  Such  a  statute,  being  in 
derogation  of  the  common  law,  is  strictly  construed.  A 
section  of  the  Practice  Act  of  California  provided  that  the 
misconduct  of  the  jury  should  be  cause  for  a  new  trial, 
"  and  whenever  any  one  or  more  of  the  jurors  shall  have 
been  induced  to  assent  to  any  general  or  special  verdict,  or 
to  a  finding  on  any  question  or  questions  submitted  to  them 
by  the  court,  by  a  resort  to  the  determination  of  chance, 
such  misconduct  may  be  proved  by  the  affidavits  of  one  or 
more  of  the  jurors."  Under  this  statute,  affidavits  of  jurors 
who  tried  the  cause  were  presented  to  show^  that  the  jurors 
had  agreed  in  advance  to  accept  as  their  verdict  the  quotient 
which  resulted  from  dividing  the  sum  total  of  the  separate 
verdicts  of  the  jurors  by  twelve.  It  was  held  that  the  stat- 
ute had  not  so  far  changed  the  common  law  as  to  permit 
this  to  be  done.  The  court  considered  such  a  verdict  to  be 
vicious  and  irregular,  but  not  for  the  reason  that  it  w^as 
*'  a  determination  by  chance,"  in  which  case  only  could  mis- 
conduct of  the  jury  bie  shown  by  affidavits  of  themselves.* 

1  Owen  V.  Warbuton,  1  Bos.  &  Pul.  (N.  R.)  326.  See  also  Cluggage  v. 
Swan,  4  Binn,  150.     Compare  Harvey  v.  Hewitt,  8  Dowl.  P.  C.  598. 

2  Pekin  v.  Winkel,  77  111.  56;  Cumuiings  v.  Crawford,  88  111.  312;  post, 
§437. 

3  Ark.  Dig.  Stat.  1874,  §  1971 ;  Tex.  Code  Criin.  Proc.  1879,  Art.  777, 
subsecs.  3  and  8;  Fain  v.  Goodwin,  35  Ark.  109;  Hunter  v.  State,  8  Tex. 
App.  75;  Donner  v.  Palnaer,  23  Cal.  40;  Turner  v.  Tuolumne  Co.,  25  Cal. 
400. 

*  Turner  v.  Tuolumne  Co.,  25  Cal.  397 ;  Boyce  v.  California  Stage  Co., 
25  Cal.  460. 


§  415.]  QUOTIENT  VERDICTS AFFIDAVITS  OF  JURORS.  517 

■"  Independent  of  authority,"  said  Sanderson,  C.  J.,  "  it  is 
manifest  that  there  is  no  element  of  chance  in  such  a  ver- 
dict. Each  juror  marks  a  sum  which,  in  his  judgment,  rep- 
resents the  true  amount  of  damages.  Neither  of  these 
sums  is  the  result  of  chance  ;  on  the  contrary,  each  is  the 
result  of  the  judgment  or  will  of  the  juror  by  whom  it  was 
marked.  Neither  is  the  ao-o-reo-ate  of  these  sums,  nor  the 
quotient  resulting  from  a  division  of  the  aggregate  by 
twelve,  the  result  of  chance,  but,  on  the  contrary,  the  result 
of  the  most  accurate  of  the  sciences.  Thus,  from  the  com- 
mencement to  the  end  of  the  process  no  quantity  which  en- 
ters into  the  final  result  is  determined  by  a  resort  to 
chance." 

This  reasoning  seems  hardly  conclusive.  It  proceeds 
upon  the  hypothesis  that,  at  the  time  the  jurors  consent  to 
be  bound  by  the  result  of  the  addition  and  division,  it  is 
certain  what  each  juror  will  mark  down  as  his  estimate  of 
the  damages  ;  hence  this  process  of  finding  a  verdict  is  as 
«xact  as  the  science  of  mathematics.  But  the  contrary  is 
the  fact.  The  jurors  consent  that  their  verdict  shall  vary 
from  abstract  justice  in  that  degree  that  each  juror  deviates 
from  sound  judgment.  All  the  prejudices,  whims  and  ca- 
prices which  sway  a  juror  in  his  deliberations  are  given  full 
play,  and  they  measureably  affect  the  final  result.  Nothing 
could  well  be  more  the  sport  of  chance  than  a  conclusion 
reached  in  this  manner.^ 

Under  a  provision  of  the  civil  code  of  Iowa,  authorizing 
the  use  of  affidavits  of  jurors  in  relation  to  applications  for 
new  trials,  the  court  refused  to  compel  jurors  to  submit  to 
an  examination  under  oath  as  to  the  manner  in  which  they 
had  made  up  their  verdict,  on  the  statement  of  an  attorney 
<if  the  defendant  that  the  jurors  had  agreed  to  make  up 
their  verdict  by  each  marking  a  certain  sum,  and  dividing 
the  aggregate  by  twelve.^     But  an  affidavit  of  jurors  to  this 

1  "  Quotient  "  verdicts  are  frequently  spoken  of  as  "  chance  "  verdicts. 
Warner  v.  Kobinson,  1  Root,  195;  Pekin  y.  Winkel,  77  111.  56,  58;  Par- 
ham  V.  Harucy,  6  Snied.  &  M.  55. 

-  Forshee  v.  Abrams,  2  Iowa,  571. 


518        IMPROrER  METHODS  OF  ARRIVING  AT  VERDICT.  [CH.  XX> 

effect,  when  voluntarily  made,  affords  good   ground  for  a 
new  trial. ^ 

§416.  Experimenting. —  Cases  are  found  where  new 
trials  have  been  granted  because  the  jury  resorted  to  ex- 
periments of  their  own,  in  order  to  determine  the  value  of 
certain  testimony.  Thus,  in  a  capital  case,  two  witnesses 
had  testified  that,  at  the  time  the  gun  was  fired,  they  heard 
the  person  talking  in  a  house  at  a  distance  from  the  scene 
of  the  homicide.  The  jury,  after  they  had  retired  to  de- 
liberate, with  the  view  of  ascertaining  whether  these  wit- 
nesses could  have  heard  the  person  thus  talking,  sent  the 
constable  out  and  began  talking  in  their  room,  and  then 
called  the  constable  in  and  asked  him  whether  he  heard 
them.  In  the  vicinity  of  the  murder,  tracks  were  found, 
which  were  half  an  inch  shorter  than  the  shoe  worn  by  the 
person.  It  having  been  suggested  that  the  foot-prints 
made  by  a  man  while  running  were  somewhat  shorter  than 
his  tracks  made  while  walking,  the  jurors  and  the  constable 
tried  a  further  experiment  by  running,  and  found  their  own 
tracks  half  an  inch  shorter  than  their  shoes.  After  these 
experiments  they  returned  a  verdict  of  guilty.     A  new  trial 


1  Manix  v.  Malony,  7  Iowa,  81;  Kuble  v.  McDonald,  7  Iowa,  90  j 
Schanler  v.  Porter,  7  Iowa,  482;  Barton  v.  Holmes,  16  Iowa,  252; 
Wright  V.  Illinois  etc.  Tel.  Co.,  20  Iowa,  195;  Ilendrickson  v.  Kingsbury, 
21  Iowa,  379;  Fuller  v.  Chicago  etc.  R.  Co.,  31  Iowa,  211.  In  Warner  v. 
Robinson,  1  Root,  194,  195,  the  court  ascertained  this  misconduct  by  in- 
quiry of  the  jurors.  Such  a  course  is  believed  to  be  irregular.  1.  Because 
if  guilty  of  misconduct  the  jurors  have  violated  their  oaths,  which  they 
ought  not  to  be  heard  to  allege.  2.  Because  their  misconduct  renders 
them  liable  to  punishment.  If  the  court  presumes  to  make  inquiries  of 
them  upon  this  point,  the  jurors  should  be  cautioned  that  they  are  not 
bound  to  answer.  In  Com.  v.  AVright,  1  Cush.  46,  it  was  held  libellous  to 
publish  of  one  in  his  capacity  as  a  juror,  that  he  agreed  with  another 
juror  to  stake  the  decision  of  damages,  to  be  given  in  a  cause  then  under 
consideration,  upon  a  game  of  draughts.  "  The  tendency  of  the  publica- 
tion," said  Forbes,  J.,  "  was  to  degrade  the  prosecutor  in  the  esteem  and 
opinion  of  the  world;  it  impeached  his  integrity  as  a  juror,  and  must,  if 
the  charge  which  it  contains  were  true,  make  him  an  object  of  distrust 
and  contempt  among  men."  Ibid.  62.  When  the  information  sought  by 
a  question  will  have  this  effect,  it  ought  not  to  be  asked  of  a  juror.  AntCy 
§  245;  post,  §  440. 


§   417.]     PRIVATE  SEARCH  OF  JURORS  FOR  EVIDENCE.  519 

was  granted,  the  court  saying:  "We  cannot  permit  ver- 
dicts which  have  been  obtained  like  this,  upon  uncertain 
and  dangerous  experiments,  instead  of  a  cahn,  deliberate 
and  philosophical  examination  of  the  proof,  to  stand,  where 
the  lives  of  individuals  are  at  stake,"  ^  So,  on  tlie  trial  of 
a  capital  case,  the  prosecuting  attorney  brought  in  a  pan  of 
mud,  and  called  upon  the  prisoner  to  put  his  foot  in 
it,  (the  court  telling  him  at  the  same  time  that  he  need 
not  do  it  if  he  did  not  want  to),  with  the  view  of 
ascertaining  whether  the  track  thus  made  would  corre- 
spond to  the  foot-prints  found  near  the  scene  of  the 
murder.  For  this  a  new  trial  was  o-ranted."^  It  is  doubtful 
whether  these  decisions  can  be  sustained  on  sound  princi- 
ples. In  all  cases  of  conflicting  or  of  circumstantial  evi- 
dence, the  jurors  arrive  at  their  verdict  by  applying  their 
separate  experiences  to  the  evidence.  One  of  the  chief 
advantages  of  trial  by  jury  is  supposed  to  be  that,  to 
apply  the  combined  experience  of  a  large  number  of  men 
to  conflicting  testimony,  is  a  safer  way  of  arriving  at  the 
facts  than  to  trust  to  the  decision  of  one  man.  There  seems 
to  be  no  o-ood  reason  for  makino;  a  distinction  between 
present  experiments  and  past  experience  in  this  respect.^ 

§  417.  Private  Search  of  Jurors  for  Evidence. —  In- 
spection by  triers  of  fact  is  recognised  as  one  of  the  modes 
of  producing  evidence,  or  rather  of  dispensing  with  it  ;*  and 
while  a  court  will,  in  proper  cases,  and  under  proper  safe- 
guards, permit  the  jury  to  visit  the  locus  in  quo,  to  inspect 
the  scene  where  a  particular  thing  is  alleged  or  shown  to 

iJim  V.  State.  4  Humph.  2^9. 

-  Stokes  V.  State,  5  Baxter  (Tenn,),  619. 

3  In  a  capital  case  in  Illinois,  a  new  trial  was  granted  because  the  jury- 
were  permitted  to  experiment  with  a  pistol,  with  the  view  of  ascertain- 
ing whether  or  not  the  deceased  could  have  shot  himself  witli  the  par- 
ticular weapon  in  the  position  in  which  he  was  found,  and  in  tlie  place 
where  the  ball  entered.  But  the  objection  which  the  court  saw  to  this 
seems  to  have  been  that  the  particular  pistol  had  not  been  sufficiently 
identified  as  the  pistol  which  tlie  deceased  had  in  his  bauds  when  he 
was  found  dead.     Yates  v.  People,  38  111.  527. 

4 1  Whart.  Ev.  §  345,  et  seq.  See  Stockwell  v.  Railroad  Co.,  43  Iowa, 
470. 


520        IMPROPER  METHODS  OF  ARRIVING  AT  VERDICT.  [Cll.  XX. 

have  been  done,  or  the  weapon  with  which  a  crime  is  al- 
leged or  shown  to  have  been  committed,  and  tlic  like,  yet 
it  is  never  tolerated  that  jurors  should  make  such  inspec- 
tions of  their  own  accord.^  It  is  well  settled  that  jurors 
must  decide  cases  upon  such  evidence  as  is  produced  before 
them  by  the  parties  to  the  litigation,  and  that  they  cannot 
go  in  search  of  evidence  privately,  or  act  upon  evidence 
thus  obtained.^ 

§  418.  Compromise  Verdicts. —  Where  the  verdict  which 
the  jury  return  cannot  be  justified  upon  any  hypothesis 
presented  by  the  evidence,  it  ought  obviously  to  be  set  aside. 
Thus,  if  a  suit  were  brought  upon  a  promissory  note,  which 
purported  to  be  given  for  $100,  and  the  only  defense  was 
that  the  defendant  did  not  execute  the  note,  and  the  jury 
should  return  a  verdict  for  $50  only,  it  would  not  be  allowed 
to  stand  ;  for  it  would  neither  conform  to  the  plaintiff's  evi- 
dence, nor  to  that  of  the  defendant ;  it  would  be  a  verdict 
without  evidence  to  support  it.  And  it  is  not  to  be  tolerated 
that  the  jury  should  thus  assume,  in  disregard  of  the  law 
and  evidence,  to  arbitrate  the  differences  of  parties,  or  to  de- 
cide according  to  some  supposed  natural  equity  which  in 
reality  is  merely  their  own  whim.  When,  therefore,  there 
was  a  claim  and  counterclaim,  and  the  damages  in  each  case 
were  certain,  and  the  only  question  was  whether  there  was 
such  a  contract  as  that  which  was  set  up  by  the  defendant 
in  support  of  his  counterclaim,  and  the  jury  found  for 
the  plaintiff  in  the  amount  of  his  claim,  and  for  the  defend- 
ant for  a  portion  of  the  amount  of  his  counterclaim  onl}^ 
it  was  held  that  as  there  was  no  hypothesis  of  fact  on 
which  the  verdict  could  be  justified,  that,  as  it  must  have 
been  the  result  of  a  compromise  or  mistake,  the  judgment 
must  be  reversed.^     The  principle  upon  which  cases  of  this 

1  Ante,  §  354.     See  Hayward  v.  Knapp,  22  Minn.  a. 

2  Winslow  V.  Morrill,  68  Me.  362;  Heffrou  v.  Gallupe,  55  Me.  56:5; 
Bowler  v.  Washington,  62  Mo.  302;  Bradbury  v.  Cony.  62  Me.  223;  ante, 
§  353.  See  Thompson  v.  Mallet,  2  Bay,  94;  Ferine  v.  Van  Note,  4  N.  J. 
L.  146.  Compare  Sandert-on  v.  Xashua,  44  N.  H.  492;  Peoi)le  v.  Bon- 
ney,  19  Cal.  426. 

3  St.  Louis  Brewery  Co.  v.  Boderaan.MS.,  St  liOuis  Court  of  Appeals. 


§  418,]  COMPROMISE  VERDICTS.  521 

kind  proceed,  could  not  be  made  clearer  by  multiplying 
illustrations.^  This  principal,  however,  applies  only  to 
cases  where  the  damages  sought  to  be  recovered  are  liqui- 
dated. In  suits  for  unliquidated  damages  where  the  jury 
give  a  round  sum,  the  amount  of  their  verdict  is,  in  many 
■cases,  necessarily  the  result  of  concession  and  compromise. 
In  such  cases  a  verdict  will  not  be  set  aside,  although  the 
amount  of  the  verdict  itself  raises  a  strong  inference  that 
it  was  arrived  at  as  the  result  of  striking;  an  average  —  as 
where,  in  such  a  case,  the  verdict  was  five  hundred  and  sixty 
dollars  and  fifty  cents? 

^  Koeder  v.  Studt,  MS.  St.  Louis  Court  of  Appeals;  Todd  v.  Boone 
Co.,  8  Mo.  431 ;  Ellsworth  v.  Central  R.  Co.,  34  N.  J.  L.  93.  But  see  Coyle 
V.  Gorman,  1  Phila.  326.  Where  the  plaintiff  claimed  on  two  distinct 
grounds,  either  of  which,  if  found  in  his  favor,  would  entitle  him  to  a 
verdict,  and  it  appeai-ed  that  the  jury  did  not  consider  and  decide  upon 
either  ground  separately,  but  that  some  might  have  decided  upon  one  and 
some  on  the  other,  the  verdict  was  set  aside.  Biggs  v.  Barry,  2  Curt.  C. 
C.  259.  It  is  no  objection  to  a  verdict  that  one  of  the  jurors  dissented 
while  the  jury  were  absent  from  the  court,  if  he  afterwards  agreed  to 
the  verdict  which  was  rendered.  Thus,  in  a  civil  ease,  one  of  the  jurors 
who  could  not  agree  with  the  others,  said  he  was  willing  to  return  into 
court  and  allow  the  foreman  to  deliver  a  verdict  for  the  plaintiff,  and  if 
they  were  polled  he  should  declare  his  dissent;  nevertheless,  if  after 
that,  the  jury  should  again  be  sent  out,  he  would  agree  to  the  verdict. 
The  jury  then  came  in,  were  polled,  and  this  juryman  declared  his  dis- 
sent from  the  verdict.  They  were  again  sent  out,  agreed  upon  a  ver- 
dict, returned  into  court,  were  again  polled,  and  each  juryman  an- 
swered that  he  agreed  to  the  verdict,  which  was  in  favor  of  the  plaintiff. 
It  was  held  that  these  facts  were  not  sufficient  ground  for  a  new  trial. 
Harrison  v.  Rowan,  4  Wash.  C.  C.  32.  Where  a  juror  held  back,  when 
pressed  to  agree  to  a  verdict  of  murder  in  the  second  degree,  sug- 
gesting to  the  other  jurors  to  sign  a  petiton  for  the  pardon  of  the  ac- 
cused, and  upon  their  agreeing  to  sign  such  a  petition,  assented  to  the 
verdict,  and  it  sufficiently  appeared  that  he  was  not  opposed  to  the  ver- 
dict and  did  not  agree  to  it  because  they  agreed  to  sign  the  petition,  it 
was  held  no  ground  for  a  new  trial.     State  v.  Turner,  6  Baxter,  201. 

^  Ante,  §  409,  et  seq. ;  St.  Louis  etc.  R.  Co.  v.  Myrtle,  51  Tnd.  566. 


b22  NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES.    [ciI.  XXI. 


CHAPTER  XXI. 

OF  THE    PRINCIPLES    WHICH    GOVERN    THE    GRANTING    OF    NEW 
TRIALS  ON  THE  GROUND  OF  MISCONDUCT  OF  JURIES. 

SECTION. 

422.  Improper  Conduct  not  always  Ground  for  New  Trial. 

423.  Must  have  been  Prejudicial  to  the  Party  complaining. 

424.  Unless  the  Successful  Party  has  tampered  with  the  Jury. 

425.  Otherwise  where  the  improper  conduct  was  accidental  and  not 

haraiful. 

426.  What  if,  upon  the  whole  case,  Justice  has  been  done. 

427.  Effect  of  Consent  and  Acquiescience. 

428.  Objection  must  be  taken  at  the  Proper  Time. 

429.  These  Kules  applicable  to  Inquests  of  Office. 

430.  In  some  Courts  the  granting  of    New  Trials   on   this   Ground 

Discretionary. 

431.  How  far  this  Discretion  revised  in  Appellate  Courts. 

432.  How  revised  where  a  New  Trial  has  been  granted. 

433.  Mode  in  which  this  Discretion  is  revised  iu  Appellate  Courts. 

434.  How  the  Facts  are  brought  to  the  Attention  of  the  Appellate 

Courts. 

(1.)   By  a  Conclusive  Finding  of  Fact  in  the  Court  Below. 

{2.)  By  Affidavits  Embodied  in  a  Bill  of  Exceptions. 

435.  Presumption  that  the  Jury  acted  regular]}-. 

436.  Evidence  to  establish  Misconduct  nuist  be  Clear  and  Positive. 

437.  Affidavits  based  on  Information  and  Belief  not  Sufficient. 

438.  Distinction  between  Proof  of  the  Fact  of  Misconduct  and  Proof 

of  its  Effect. 

439.  Presumption  where  Improper  Conduct  or  Influence  is  shown. 

440.  Testimony  of  Jurors  not  received  to  impeach  their  Verdict. 

441.  Or  to  show  that  the  Particular  Juror  did  not  consent  to  the 

Verdict. 
412.     Or  to  show  that  the  Jury  had  not  in  fact  agreed  upon  the  Ver- 
dict. 

443.  Otherwise  to  show  Mistake  in  entering  the  Verdict. 

444.  Court  may  interrogate  Jury  as  to  Grounds  of  their  Finding. 

445.  Testimony  of  Others  on  Information  derived  from  Jurors,  not 

received. 


§   423.]        NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES.  523^ 

446.  Affidavits  of  Jurors  received  to  sustain  their  Verdict. 

447.  Or  to  show  what  took  place  in  open  Court. 

448.  Or  to  show  Misconduct  of  Parties. 

449.  Whether  admissible  to  show  Misconduct  of  tiieir  Bailiff. 

450.  Or  upon  the  Question  of  the  Juror's  Competency. 

451.  Exceptional  Rule  in  Tennessee  as  to  Affidavits  of  Jurors. 

452.  Exceptional  Rule  iu  Iowa. 

(1.)  Under  the  Code  of  1851. 

(2.)  Subsequent  to  the  Revision  of  1860. 

453.  The  Iowa  Rule  followed  iu  Kansas. 

454.  Statutory  Rule  in  California  and  Ai-kansas  in  case  of  Chance 

Verdicts. 

455.  Statutory  Rule  in  Texas  in  Criminal  Cases. 

456.  Misconduct  in  the  Presence  of  the  Court. 

§  422.  Improper  Conduct  not  always  Ground  for  New 
Trial. —  We  have  already  seen  that  jurors  may  be  guilty  of 
many  acts  of  impropriety  which  may  subject  them  to  pun- 
ishment, but  which  will  not  operate  to  set  aside  their  ver- 
dict, if  no  injury  is  shown  to  have  resulted  to  the  losing 
party.  ^ 

§  423.  Must  have  been  Prejudicial  to  the  Party  Com- 
plaining-.— Of  course,  an  act  of  misconduct  on  the  part  of 
the  jury  will  afford  no  ground  for  a  new  trial,  if  it  is  not, 
in  fact,  prejudicial  to  the  party  complaining,^  or  if  it  works 
in  his  favor. ^  But  if  the  moving  party  shows  such  miscon- 
duct that  prejudice  may  have  resulted  to  him  from  it,  a 
new  trial  will  be  granted,  unless  the  successful  party  shows 

1  Ante,  §§  313,  348,  371 ;  People  v.  Gaffney,  14  Abb.  Pr.  (n.  s.)  36;  Med- 
lar v.  State,  26  Ind.  171;  Indianapolis  v.  Scott,  72Ind.l96;  State  v.  Baker, 
63  N.  C.  276;  State  v.  Durham,  72  N.  C.  447;  Henry  v.  Ricketts,  1 
Cranch  C.  C.  545;  Puriuton  v.  Humphreys.  6  Me.  379;  Mason  v.  Rus- 
sell, 1  Tex.  721;  Newell  v.  Ayer,  32  Me.  334;  State  v.  Cucuel,  31  N.  J. 
L.  249,  257.  In  Arkansas,  it  is  held  that  while  the  courts  should  be  very 
careful  to  protect  juries  iu  criminal  cases  from  every  improper  influence,, 
and  while  the  provisions  of  the  code  designed  for  that  purpose  should 
never  be  disregarded,  yet  those  provisions  are  directorj^  and  cau- 
tionarj'  merely,  and  a  failure  to  comply  with  them  will  not  absolutely, 
and  without  some  evidence  that  prejudice  or  injury  has  resulted  to 
the  defendant,  in  consequence  of  an  omission  to  comply  with  them, 
be  cause  for  a  new  trial.     Thompson  v.  State,  26  Ark.  323,  328. 

*  Portis  v.  State,  27  Ark.  360. 

3  Allen  v.  State,  61  Ga.  166;  Medler  v.  Dunn,  26  Ind.  171;  Flatter  v. 
McDermitt,  25  Ind.  326. 


524  NKW  TRIALS  FOR  MISCONDUCT  OF  JURIES.     [CH.  XXI. 

that,  in  fact,  such  prejudice  did  not  result.^  It  has  been 
said  that  the  safest  rule  to  ])e  adopted,  where  the  jury  has 
been  guilty  of  such  misconduct  as  might  materially  have 
xiffected  the  rights  of  the  party  complaining,  is  to  consider 
such  misconduct  a  ground  for  a  new  trial,  where  the  party 
complaining  has  not  connived  at,  or  been  instrumental  in 
any  manner  in  producing  it.^  The  following  language  in 
an  old  edition  of  Graham  on  New  Trials  was  quoted  and 
approved  by  the  Supreme  Court  of  South  Carolina : 
*'  Upon  this  point  [misconduct  of  the  jury]  the  practice 
appears  to  have  resolved  itself  into  the  exercise  of  a  judicial 
discretion,  confining  the  motion  for  a  new  trial  to  the  ques- 
tion of  abuse,  and  invariably  denying  the  application  where 
no  injury  has  ensued."  ^ 

§  424.  Unless  the  Successful  Party  lias  tampered 
with  the  Jury. —  If  it  l)e  made  to  appear  that  the  success- 
ful party  to  the  suit  has  done  an  improper  act  with  the  de- 
sign of  biasing  or  intlucncing  any  of  the  jurors,  their  ver- 
dict in  his  favor  will  be  set  aside  as  a  punishment  to  him  ; 
and  no  inquiry  will  be  made  whether  or  not  the  improper 
act  in  fact  prejudiced  the  jury  or  tainted  their  verdict. 
The  mere  attempt  to  tamper  with  them  and  corrupt  their 

1  Koehler  v.  Cleaiy,  23  Minn.  325. 

2  Luttrell  V.  Maysville,  etc.  R.  Co.,  18  B.  Mon.  291. 

3  Pulaski  V.  Ward,  2  Rich.  L.  119,  122.  Under  the  Texas  Code  of 
Criminal  Procedure,  which  authorizes  the  court  to  grant  a  new  trial 
when,  from  the  misconduct  of  the  jury,  the  court  is  of  opinion  that  the 
defendant  has  not  received  a  fair  and  impartial  trial,  misconduct  of  the 
jury  will  not  be  ground  for  a  new  trial,  unless  it  is  shown  to  be  such 
misconduct  as  has  affected  the  fairness  and  impartiality  of  the  trial. 
Texas  Code  Crim.  Proc,  Art.  G72,  subdivision  8;  Jack  v.  State,  26  Tex. 
1.  "  When  the  right  to  the  new  trial  is  rested  upon  this  ground,  the  mis- 
conduct of  the  jury  is  evidently  not  of  such  character  as  uncondition- 
ally entitles  the  defendant  to  a  new  trial  under  some  of  tlie  clauses  of  said 
article.  The  granting  or  refusal  of  it  is,  therefore,  left  to  the  discre- 
tion of  the  court,  to  be  guided  in  its  determination  by  the  application  of 
the  facts  to  the  result  attained  in  the  verdict.  If  the  new  trial  was 
claimed  in  the  court  below  upon  this  ground,  the  court,  unquestionably, 
did  not  err  in  refusing  it.  In  view  of  the  facts  of  the  case  as  they 
fire  presented  in  the  record,  it  cannot  be  plausibly  insisted  that  the  jury 
would  have  been  warranted  in  finding  a  more  favorable  verdict  for  the 
appellant  than  tlicy  have  done."'     Johnson  v.  State,  27  Tex.  758,  770. 


§  426.]  IMPROPER  CONDUCT  NOT  HARMFUL.  525 

verdict,  though  it  be  not  successful,  will  have  the  effect  to 
vitiate  it,  if  rendered  in  his  favor.  The  rule  is  intended  to 
preserve  the  purity  of  the  trial  by  jury,  and  rests  upon 
obvious  reasons  of  public  policy.^ 

§  425.  Otherwise  where  the  Improper  Conduct  was 
Accidental  and  not  Harmful. —  But  if  the  successful  party 
has,  without  any  improper  motive,  but  by  mere  accident  or 
inadvertence,  done  an  act  in  connection  with  the  jury,  im- 
proper in  itself,  and  nevertheless  it  can  be  fairly  assumed 
that  it  had  no  improper  influence  on  the  minds  of  any  of  the 
jurors,  in  such  a  case  it  is  justly  held  that  the  verdict  ought 
not  to  be  disturbed.'  But,  as  elsewhere  stated,  a  presumption 
obtains  in  such  cases  that  the  improper  act  did  exert  an  im- 
proper influence  on  the  minds  of  the  jury,  and  the  verdict 
will  be  set  aside,  unless  this  presumption  is  overcome  by 
proof  .^ 

§  426.  What  if  upon  the  whole  Case  Jvistice  has  been 
done. —  In  one  or  two  States  the  rule  obtains  that  a  new 
trial  will  not  be  granted  on  the  ground  of  misconduct  of  the 
jury,  where  the  court  can  see,  upon  the  whole  case,  that 
justice  has  been  done.'*  These  courts  to  some  extent  ignore 
the  rule  of  public  policy  already  stated,  and  proceed  upon 
the  view  that  when  applications  for  new  trials  are  made, 
founded  upon  such  complaints,  they  address  themselves  to 
judicial  discretion  rather  than  to  strict  law  or  absolute 
right ;  and  that,  whether  in  any  given  case  the  verdict  should 
be  avoided,  must  depend  upon  the  abuse  presumed  to  have 
followed,  and  the  substantial  justice  of  the  case.^  In 
Texas,  expounding  a  statute,  the  doctrine  appears  to  have 

^  Ante,  §§  348,  subsec.  3;  364,  372;  Vaughn  v.  Dotson,  2  Swau,  348; 
Walker  v.  Walker,  11  Ga.  206;  Walker  v.  Hunter,  17  Ga.  364,  404; 
Cottle  V.  Cottle,  6  Me.  140;  Sexton  v.  Lelievrre,  4  Coldw.  11;  State  v. 
Cucuel,  31  N.  J.  L.  249,  257. 

2  Vaughn  v.  Dotson,  2  Swan,  348;  Tripp  v.  County  Conirs.,  2  Allen, 
556;  Pittsburgh,  etc.  R.  Co.  v.  Porter,  32  Ohio  St.  328. 

3  Ante,  §§  328;  348,  subsec.  2;  385,  subsec.  3,  395;  i^ost,  §  439. 

*  Peire  v.  Martin,  14  La.  64.     See  also  Randall  v.  Bayon,  4  Mart.  (N. 
S.)  132;  McCarty  V.  McCarty,  4  Rich.  L.  594. 
s  McCarty  v.  McCarty,  4  Ricli.  L.  394. 


526  NEAV  TRIALS  FOK  MISCONDUCT  OF  JURIES.    [CH.  XXI. 

taken  root,  in  cases  of  felony,  even  in  those  wliicli  are  capi 
tal,  that  whether  or  not  a  new  trial  will  be  granted  on  the 
ground  of  misconduct  of  the  jury,  is  a  matter  of  discretion, 
in  the  determination  of  which  the  court  below  is  guided  by 
the  application  of  the  facts  to  the  result  attained  in  the  ver- 
dict.^ 

§  427.  Effect  of  Consent  and  Acquiescence. —  Again, 
consent  of  the  unsuccessful  party  in  a  civil  case,^  or  of  the 
defendant  in  a  criminal  case,^  that  an  indulgence  be  ex- 
tended to  the  jury,  such  as,  if  taken  without  such  consent, 
or  without  leave  of  the  court,  might  be  suificient  to  avoid 
their  verdict  —  as,  that  the  jury  be  allowed  ardent  spirits,*  or 
that  they  be  allowed  to  retire  and  deliberate  w^ithout  being 
attended  by  an  officer,^  —  will  estop  the  party  who  has  thus 
consented  from  urging  the  irregularity  as  ground  for  a  new 
trial.     An  exception  to  this  rule  has  been  noted  elsewhere.*' 

§  428.  Objection  must  be  taken  at  the  Proper  Time. — 
Moreover,  it  is  essential  to  the  right  to  claim  a  new  trial  on 
the  ground  of  misconduct  of  the  jury,  or  of  the  opposite 
party  or  his  attorney  with  respect  to  the  jur}^  that  the  act 
of  misconduct  should  be  called  to  the  attention  of  the 
court  at  the  time  w^hen  it  is  discovered,  or  as  soon  there- 
after as  the  course  of  the  proceedings  in  the  court  will  per- 
mit. The  rule  proceeds  upon  the  ground  that  the  party  ought 
not  to  be  permitted,  after  discovering  an  act  of  misconduct 
which  would  entitle  him  to  claim  a  new  trial,  to  remain 
silent  and  take  his  chances  of  a  favorable  verdict,  and 
afterwards,  if  the  verdict  goes  against  him,  bring  it  for- 
ward as  a  ground  for  a  new  trial.     Such  a  course  is  incon- 

1  Johnson  V.  State,  27  Tex.  758.  See  also  Jack  v.  State,  26  Tex.  4; 
Wakefield  v.  State,  41  Tex.  556;  Jenkins  v.  State,  41  Tex.  128.  Other 
cases  may  be  found  where  the  fact  that  the  verdict  was  clearlj'  right  ou 
the  evidence,  obviousl}"  affected  the  conclusion  of  the  court  on  tliis  ques- 
tion.    State  v.  Turner,  25Ija.  An.  573. 

*  Colenpan  v.  Moodj',  4  Hen.  &  M.  1. 

3  United  States  v.  Gibert,  2  Sumner  19,  83. 

*  Coleman  v.  Moody,  supra;  United  States  v.  Gibert,  supra. 

5  Tower  v.  Hewett.  11  Johns.  134. 

6  Ante,  §  339. 


§   428.]  FAILURE  TO  OBJECT.  527 

sistent  with  the  candoi-  and  good  faith  which  shoukl  char- 
acterize judicial  proceedings.^  This  rule  ai)plies  to  nearly 
all  the  errors  and  irregularities  which  take  place  in  a  judi- 
cial trial.-  Perhaps  one  of  the  most  familiar  illustrations 
of  it,  is  the  case  where  improper  evidence  is  admitted,  and 
no  objection  is  made  at  the  time,  in  which  case,  the  error  is 
DO  ground  for  a  new  trial. ^  Thus,  where,  during  the 
progress  of  a  trial  for  murder,  and  during  the  argument  of 
counsel,  a  juror  was  taken  with  a  chill,  was  placed  on  a 
pallet  by  direction  of  the  court,  and  there  went  into  a 
drowse,  so  that  he  did  not  hear  and  comprehend  the  whole 
of  the  argument  of  the  prisoner's  counsel,  and  this  fact 
was  known  to  the  prisoner  alone,  who  did  not  object,  it  was 
held  no  ground  for  a  new  trial.*  This  rule  has  also  been  ap- 
plied in  a  civil  case  where  one  of  the  jurors  made  a  remark 
indicating  a  want  of  consideration  for  the  solemnities  of  his 

1  Lee  V.  McLeod,  15  Nev.  158;  Baxter  v.  People,  8  111.  368;  Cogswell 
V.  State,  49  Ga.  103;  Martin  v.  Tidwell,  36  Ga.  332,  345;  Pettlbone 
V.  Phelps,  13  Conn.  445,  452 ;  People  v.  Wilson,  8  Abb.  Pr.  137 ;   s.  c, 

4  Park.  Cr.  R.  619;  Stampofski  v.  Steffens,  79  111.  303;  Hussey  v.  Allen, 
59  Me.  269;  United  States  v.  Boyden,  1  Lowell,  266;  Gale  v.  New 
York,  etc.  R.  Co.,  13  Hun,  1;  2  Woodb.  &  M.  121,  148.  In  Vermont, 
it  is  held  that  the  fact  that  the  moving  party  neglected  to  inform  the 
court  before  the  jury  retired,  of  misconduct  on  the  part  of  jurors  during 
the  trial,  which  came  to  his  knowledge,  would  not,  if  proved,  neces- 
sarily, as  a  matter  of  law,  defeat  the  motion  for  a  new  trial.  McDaniels 
V.  McDaniels,  40  Vt.  363.  In  a  case  in  Iowa,  it  is  said  that  the  fact  that 
the  attorney  of  the  moving  party  knew  of  the  misconduct  of  the  jui-or 
before  the  rendering  of  the  verdict,  would  not  constitute  such  a  negli- 
gence as  would  defeat  the  motion,  unless  it  was  made  to  appear  that 
after  that  time  the  prejudice  might  have  been  avoided.  Oleson  v. 
Meader,  40  Iowa,  662.  Compare  Fox  v.  Hazelton,  10  Pick.  275;  ante, 
§  275,  subsec.  2. 

2  State  V.  Haseall,  6  N.  H.  352.  "It  is  well  settled  that  a  new  trial 
should  not  be  granted  for  a  cause  existing  at  the  trial  which  was  not 
stated  or  excepted  to  then."  Woodbury,  J.,  in  Allen  v.  Blunt,  2  Woodb. 
&M.  121,148. 

3  Nichols  V.  Alsop,  10  Conn.  263;  Torry  v.  Holmes,  10  Conn.  499; 
Russel  V.  Union  Ins.  Co.,  1  Wash.  C.  C.  440;    Jackson  v.  Jackson, 

5  Cow.  173;  Wait  v.  Maxwell,  5  Pick.  217;  Rice  v.  Bancroft,  11  Pick. 
469;  Worford  v.  Isbell,  1  Bibb,  247;  Cannon  v.  Alsbury,  1  A.  K.  Marsh. 
76;  Train  v.  Collins,  2  Pick.  145. 

4  Baxter  v.  People,  8  111.  368. 


528  NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES.     [CII.  XXI, 

position  ; '  whore  a  juror  in  the  absence  of  the  court,  before 
the  whole  jury  had  been  iuipanellcd,  read  a  newspaper 
containing  an  abusive  article  reflcctin<>:  on  the  prisoner's 
counsel  ;  -  and  where  a  juror  made  an  improper  inquiry  of 
the  clerk,  which  was  not  objected  to  at  the  time.^  On  like 
grounds,  a  party  in  a  civil  case  cannot  claim  a  new 
trial  on  the  ground  that  one  of  the  jurors  was  disqual- 
ified, without  alleging  in  his  motion,  and  making  it  appear 
that  he  did  not  know  of  the  disqualification,  during  the 
trial.  "  A  party  cannot  l)e  permitted  to  lie  by,  after  having 
knowledge  of  a  defect  of  this  kind,  and  speculate  upon  the 
result,  and  complain  only  when  the  verdict  becomes  unsatis- 
factory to  him."  *  It  follows  from  the  foregoing  that  where 
a  party  moves  for  a  new  trial  on  the  ground  of  miscon- 
duct on  the  part  of  the  jury,  which  took  place  during  the 
trial,  he  must  aver  in  his  motion,  and  show  affirmatively 
that  he  and  his  counsel  were  ignorant  until  after  the  jury 
had  retired,  of  the  fact  of  such  misconduct.^ 

§  429.  These  Riiles  applicable  to  Inquests  of  Office.  — 
The  rules  of  the  common  law  touching  the  misconduct  of 
juries,  which  have  been  framed  to  guard  the  purity  of  ver- 
dicts, are  of  equal  importance  in  inquests  of  office,  where,  as 
in  case  of  the  laying  out  of  a  road,  the  flowage  of  land  by 
a  mill-dam,  or  the  taking  of  land  for  a  work  of  public 
utility,  a  jury  is  required  to  proceed  into  the  country,  in 

1  Martin  v.  ridwell,  36  Ga.  332,  345. 

2  Hunter  v.  State,  43  Ga.  484,  524. 

3  Allen  V.  Blunt,  2  Woodb.  &  M.  121,  148. 

*  Selleck  v.  Sugar  Hollow  Turnp.  Co.,  13  Conn.  453.  To  the  same 
effect  are  Orrok  v.  Com.  Ins.  Co.,  21  Pick.  457;  Herbert  v.  Shaw,  11 
Mod.  118;  Reg.  v.  Sullivan,  8  Ad.  &  El.  831;  Kex  v.  Sutton,  8  Barn.  & 
Cres.  417;  State  v.  Daniels,  44  N.  H.  383;  Rollins  v.  Ames.  2  N.  H.  349; 
Hallock  V.  County  of  Franklin,  2  Met.  558;  Merrill  v.  Berksliire,  11  Pick. 
2G9;  Howland  v.  Gifford,  1  Pick.  43,  note;  ante,  §  275,  subsec.  2. 

5  Woodruff  V.Richardson.  20  Conn.  238;  Pettibone  v.  Phelps.  13  Conn. 
445;  Allen  v.  Blunt,  2  Woodb.  &  M.  121,  148;  Martin  v.  Tidwell,  36  Ga. 
332,345;  Hunter  v.  State,  43  Ga.  484,  524;  Cogswell  v.  State,  49  Ga. 
103;  McAllister  v.  Sibley,  25  Me.  474,  487;  ante,  §  275,  subsec.  2.  For 
other  applications  of  the  same  principle,  see  Gibson  v.  Williams,  39  Ga. 
660;  Brown  v.  State,  28  Ga.  439;  Cannon  v.  Bullock,  26  Ga.  431;  Bar- 
low v.  State,  2  Blackf.  114. 


§   430.]      GRANTING  OF  NEW  TRIALS  DISCRETIONARY.  529 

charge  of  the  sheriff  or  other  officer,  and,  upon  a  view  of 
the  land,  and  perhaps  on  other  testimony,  assess  the  dam- 
ages. In  such  cases  the  fact  that  the  jury  are  not  under 
the  eye  of  the  court,  as  in  an  ordinary  trial,  is  deemed  an 
additional  reason  for  requiring  strict  conduct  on  their  part 
and  on  the  part  of  the  officer  having  them  in  charge.  Ac- 
cordingly, in  the  absence  of  statute,  it  seems  that  the  same 
jealous  vigilance  will  be  exercised  to  prevent  any  improper 
influencing  of  the  jury  in  cases  of  inquests  of  office,  as  in 
trials  at  common  law.^  Impressed  with  this  view,  the  leg- 
islatures of  several  of  the  States,  ni  providing  for  the 
assessment  of  damages  by  juries  in  such  cases,  have  re- 
enacted,  with  more  or  less  strictness,  the  rules  of  the  com- 
mon law  which  apply  to  trials  before  courts.^ 

§  430.  In  some  Courts  the  granting"  of  New  Trials  on 
this  Grround  discretionary. —  It  will  be  remembered  that 
the  common  law  doctrine  was,  that  the  granting  or  refusing 
of  new  trials  was  matter  of  discretion  with  the  trial  court, 
and  that  the  exercise  of  this  discretion  was  not  a  subject 
for  revision  in  a  court  of  error. ^  While  this  rule  is  now 
generally  denied,   it  is  believed,   in  American  courts,   yet 

1  "I  am  of  opinion,"  said  a  learned  judge  in  an  early  case  in  Vir- 
ginia, "  that  the  same  jealous  vigilance  ouglit  to  be  exercised  in  cases 
of  inquests  of  office  as  in  trials  at  common  law.  The  reason  is  even 
stronger.  The  latter  are  had  under  the  eye  of  a  court  of  justice  which, 
if  it  observes  anything  improper  in  the  conduct  of  a  jury,  will  imme- 
diately set  aside  the  verdict.  Inquests  of  office  are  taken  in  pais ;  the 
superintendence  of  the  sheriff  may  not  always  be  adequate  to  the  pre- 
vention or  discovery  of  improper  practices."  Coleman  v.  Moody,  4 
Hen.  &M.  1,  17. 

2  Thus,  from  the  case  just  cited,  it  appears  that  there  wei'e  some  old 
statutes  of  this  kind  in  Virginia.  The  act  concerning  roads  prohibited 
a  juror,  on  pain  of  being  discharged  from  the  inquest  and  imprisoned 
by  the  sheriff,  from  taking  any  meat  or  drink  from  any  persons  zohatever, 
from  the  time  the  jury  should  come  to  the  place  which  they  were  to 
view  until  their  inquest  was  sealed.  Va.  Stat.  1794,  ch.  .19.  The 
statute  for  the  removal  of  the  seat  of  government  contained  a  similar 
provision.  Va.  Stat.  1799,  ch.  21.  In  other  States  the  statutes  are  more 
general,  applying  to  all  cases  in  which  verdicts  are  returned  by  juries. 
See,  for  instance,  Gen.  Stats.  Mass.,  ch.  132,  §  33;  Tripp  v.  County  Com- 
missioners, 2  Allen,  oiiQ. 

^  Hilliard  on  New  Trials,  §  7. 

(34) 


530  NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES.    [CII.  XXI. 

there  arc  courts  in  this  country  which  still  adhere  to  it  and 
apply  it  in  the  cases  we  are  considering.^  This  doctrine  has 
been  asserted  in  North  Carolina,  even  in  cases  of  felonies''' 
which  are  capital.^ 

These  decisions  are  based  upon  the  consideration  that  it 
is  not  competent  for  an  a})pellate  court,  in  cases  at  law, 
whether  civil  or  criminal,  to  examine  questions  of  fact. 
When,  therefore,  the  matter  which  is  urged  as  ground  for 
the  new  trial,  arises  on  the  record  proper,  —  when  it  relates 
to  some  action  or  refusal  to  act  of  the  court, —  it  is  subject 
to  revision  ;  but  when  it  rests  on  extrinsic  matters  which 
are  brought  to  the  attention  of  the  trial  court  by  the  affida- 
vits of  witnesses,  the  appellate  court  will  not  review  the 
conclusion  of  the  trial  court  thereon  ;  for,  in  order  to  do 
so,  it  would  have  to  consider  questions  of  fact,  and  to  say 
whether  or  not  the  trial  court  was  right  in  refusing  credit  to 
the  witnesses.  In  some  States  the  jurisdiction  of  the  Supreme 
Court  is  limited  by  the  terms  of  the  Constitution  of  the 
State,  to  the  consideration  of  questions  of  law.  This 
was  so  with  the  Supreme  Court  of  Louisiana  under  the 
constitution  of  1846.  And  it  was  held  incompetent  for  it 
to  revise  the  discretion  of  the  district  court  in  refusing  a 
new^  trial  in  a  criminal  case,  where  the  ground  on  which  the 
new  trial  w^as  claimed,  rested  on  facts  set  up  by  affidavits, 
which  the  trial  court  might  or  misfht  not  have  believed.^ 


1  Downer  v.  Baxter,  30  Vt.  467,  474;  State  v.  Tucker,  10  La.  An.  501 ; 
State  V.  Brette,  6  La.  An.  652,  657.  See  also  State  v.  Hunt,  4  La.  An. 
438;  Smith  v.  Willingham,  44  Ga.  200;  Moore  v.  Edmiston,  70  N.  C. 
471 ;  State  v.  Tighlman,  11  Ired.  L.  513 ;  State  v.  Miller,  1  Dev.  &  Bat.  500; 
Love  V.  Moody,  68  N.  C.  200;  Vest  v.  Cooper,  68  N.  C.  131;  Exchange 
Bank  v.  Tiddy,  67  N.  C.  169;  Pittsburgh,  etc.  E.  Co.  v.  Porter,  32  Ohio 
St.  328,  332. 

2  State  V.  Hester,  2  Jones  L.  S3,  86. 

»  State  y.  Miller,  1  Dev.  &  Bat.  500, 509.  In  Alubunia.  tlie  improper  con- 
duct of  the  jury  after  they  have  retired  to  make  up  their  verdict,  is  no 
ground  for  a  motion  in  an-est  of  judgment,  but  may  be  a  ground  for  a 
motion  for  a  new  trial.  Nevertheless,  the  action  of  the  trial  court  in 
refusing  a  new  trial  on  that  ground,  is  not  revisable  on  error.  Brister 
V.  State,  26  Ala.  107. 

<  State  v.  Hunt,  4  La.  An.  438;  State  v.  Brette,  6  La.  An.  052. 


§  432.]   HOW  WHERE  NEW  TRIAL  HAS  BEEN  GRANTED.  531 

§  431.  How  far  this  Discretion  revised  in  Appellate 
Courts. —  But  this  is,  nevertheless,  generally  regarded  as  a 
judicial  discretion,  controlled  by  the  law  and  affecting  the 
substantial  rights  of  the  party  complaining.  Since,  then, 
the  determination  must,  in  each  case,  depend  upon  the  view 
taken  by  the  court  below  of  the  facts  adduced  in  support 
of  the  motion,  where  the  decision  does  not  clearly  conflict 
with  the  law  as  applied  to  the  plain  facts  of  the  case,  the 
ruling  of  the  court,  upon  well  settled  principles,  cannot  be 
reversed.^  For  like  reasons,  where  the  evidence  adduced 
to  show  misconduct  is  contradicted,  an  appellate  court  will 
not  revise  the  finding  of  the  trial  court  upon  the  fact 
whether  there  was  such  misconduct,  unless  it  is  clearly 
wrong. ^  In  other  cases,  it  is  held  that  it  requires  a  clear 
case  to  justify  a  revision  of  this  discretion  by  an  appellate 
court. ^ 

§  432.  How  revised  where  New  Trial  has  been  granted. 
—  It  seems  that  in  a  few  of  the  States  the  discretion  of  the 
courts  of  nisi  i^rius  in  granting  new  trials,  is,  in  cases  of 
manifest  abuse,  subject  to  revision  on  appeal  or  writ  of 
error.  Thus,  in  North  Carolina,  an  appeal  is  allowed  as 
well  from  an  order  granting,  as  from  an  order  refusing  a 
new  trial ;  but  in  either  case  the  matter  appealed  from  must 
be  matter  "of  law  or  legal  inference."*  Where  a  new 
trial  is  asked  for  on  the  ground  of  misconduct  of  the  jury, 
the  line  of  demarkation  between  matter  of  law  or  legal  in- 
ference and  matter  of  discretion  is  said  to  be  this  :  That  to 
vitiate  and  avoid  a  verdict  as  matter  of  law,  it  must  appear 
that  undue  influence  was  brought  to  bear  upon  the  jury ; 
but  all  other  circumstances  of  suspicion  address  themselves 
exclusively  to  the  discretion  of  the  presiding  judge.* 
Obviously,  appellate  courts  so  exercising  a  jurisdiction  will 
interfere  less  readily  where  a  new  trial  has  been  improvi- 

1  Pittsburgh,  etc.  K.  Co.  v.  Porter,  32  Ohio  St.  328,  332. 

2  Todd  V.  Branuer,  30  Iowa,  439;  McNamara  v.  Dratt,  40  Iowa,  413. 

3  Hewitt  V.  Pioneer  Press  Co.,  23  Minn.  178. 
*  N.  C.  Code  Civ.  Proc,  §  299. 

5  Moore  v.  Edmiston,  70  N.  C.  471;  State  v.  Tilghman,  11  Ired.  L.  513. 


532  NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES.     [CII.  XXI. 

dently  granted  than  where  it  has  been  improvidently  re- 
fused. Where  a  new  trial  was  granted  because  the  father 
of  one  of  the  parties,  who  had  been  rejected  as  a  witness 
by  reason  of  interest,  talked  loudly  in  the  hearing  of  the 
jury  about  the  case,  saying  that  he  could  have  explained 
the  whole  thing,  if  he  had  been  permitted  to  testify,  it  was 
held  that  there  had  been  no  abuse  of  discretion  such  as 
would  warrant  the  court  in  interfering  ;  ^  and  so  in  another 
case  the  circuit  court  had  granted  a  new  trial  l)ecause  the 
jury  had  separated,  although  no  improper  influence  ap- 
peared, and  the  Supreme  Court  refused  on  appeal  to  set 
aside  this  order.'  So,  where  the  Supreme  Court  collected 
from  the  affidavits  that  a  new  trial  had  been  granted  be- 
cause the  jury  had  been  tampered  with,  it  refused  to 
interfere.^ 

§  433.  Mode  in  whicli  this  Discretion  revised  in  Appel- 
late Courts. —  It  would  be  impossible  to  state,  without 
going  too  much  at  length  into  the  practice  in  different 
States  with  reference  to  new  trials,  the  rules  of  procedure 
under  which  the  appellate  courts  revise  the  discretion  of 
trial  courts  in  this  particular.  It  may  be  said,  however, 
that  the  misconduct  of  a  jury  can  only  be  examined  on  a 
motion  for  a  new  trial,  and  is  no  ground  for  arresting  the 
judgment,*  nor,  under  the  common  law  rules  of  procedure, 
for  reversing  it  on  error. ^ 

§  434.  How  Facts  brought  to  Attention  of  Appellate 
Court. —  (1.)  By  a  Conclusive  Finding  of  Fact  in  the 
Court  below. —  In  Massachusetts,  on  a  motion  for  a  new 
trial  on  the  ground  of  misconduct  in  the  jury,  the  court  be- 
low hears  evidence  and  makes  a  finding  of  fact.  This  the 
Supreme  Court  will  not  undertake  to  revise,  but  will  limit 
itself  to  considering  whether,  upon  the  facts  thus  found, 
the    law  requires  a  disallowance  of   the  verdict.**     In  like 

1  Smith  V.  Willingham,  44  Ga.  200. 

2  Moore  v.  Edmiston,  70  N.  C.  471. 
•■»  Love  V.  Moody,  68  N.  C.  200. 

*  Brister  v.  State,  26  Ala.  107. 

»  United  States  v.  Gillies,  1  Pet.  0.  C.  159;  s.  c,  3  Wheeler  C.  C.  308. 

*  Tripp  V.  County  Commissioners,  2  Allen,  556. 


§  434.]    HOW  PRESENTED  TO  APPELLATE  COURT.        533 

manner,  the  Supreme  Court  of  Vermont  has  ruled  that  the 
only  question  arismg  from  a  denial  by  the  court  below  of  a 
motion  for  a  ne\v^  trial  on  the  ground  of  misconduct  in  the 
jury,  which  can  be  the  subject  of  its  revision,  is  the  decision 
that  the  testimony  relied  upon  in  support  of  the  motion  in 
the  court  below  was  not  sufficient  in  law  to  justify  the  court 
in  setting  aside  the  verdict.  In  considering  this  question, 
all  the  facts  which  the  testimony  taken  in  the  court  below 
tends  to  establish,  are  treated  as  established  in  the  court 
above.  The  court  goes  further,  and  holds  that  when,  in 
such  a  case,  the  court  below  in  the  exercise  of  a  sound  dis- 
cretion, decides  that  the  motion  for  a  new  trial  ought  to  be 
denied,  it  virtually  decides  that  the  testimony  fails  to  show 
that  the  alleged  misconduct  had  any  improper  influence  on  the 
verdict ;  and  that  this  finding  is  not  subject  to  be  reviewed 
in  the  Supreme  Court. ^  In  Louisiana,  we  are  not  advised 
as  to  the  exact  practice,  but  it  has  been  ruled  that  a  state- 
ment, signed  by  the  judge  who  tried  the  case,  as  to  the  facts 
of  an  alleged  case  of  misconduct,  is  conclusive  upon  the 
court  above  as  a  finding  of  fact.^  In  Nevada,  where  the 
question  was  whether  a  new  trial  ought  to  be  granted,  in  a 
capital  case  because  one  of  the  jurors  drank  intoxicating 
liquors  while  the  jury  were  deliberating  on  their  verdict, 
and  the  question  whether  he  drank  sufficient  to  produce  in- 
toxicating effects  upon  him  was  controverted,  the  court 
held  that  this  was  a  question  of  fact  with  which  it,  as  an  ap- 
pellate court,  had  nothing  to  do,  its  jurisdiction  being  lim- 
ited to  questions  of  law  alone  ;  and  the  inference  is,  that 
the  finding  of  the  court  below  on  the  question  was  deemed 
conclusive.^ 

(2.)  By  Affidavits  embodied  in  a  Bill  of  Exceptions. — 
In  other  States  —  and  this  is  believed  to  be  the  more  gen- 
eral practice  —  the  facts  are  brought  to  the  attention  of  the 
appellate  court  by  embodying  in  a  bill  of  exceptions  the  affi- 
davits which  were  submitted  to  the  court  below.     And  here 

1  Carlisle  v.  SliPldon,  38  Vt.  440,  444. 

2  State  V.  Caulfield,  23  La.  An.  148. 
-s  State  V.  Jones,  7  Nev.  408,  414. 


534  NEW  TRIALS  FOR  MISCONDUCT  OP  JURIES,    [cil.  XXI. 

it  must  be  remembered  that  it  is  not  sufficient  that  these  af- 
fidavits arc  copied  by  the  clerk  of  the  trial  court  into  the 
transcript  which  he  sends  to  the  appellate  court ;  for  it  is 
not  everything  which  the  clerk  of  the  court  chooses  to  copy 
into  the  record  of  a  case  that  thereby  l)ecomes  a  part  of  the 
record  for  the  purpose  of  being  so  considered  by  an  appel- 
late court. ^  The  record  of  a  case  in  an  appellate  court  con- 
sists of  two  parts.  1.  The  record  proper,  which  is  generally 
understood  to  consist  of  the  process,  pleadings  and  the  entry 
of  judgment.^  2.  Matters  which  are  made  a  part  of  the  record 
by  a  bill  of  exceptions  signed  and  sealed  by  the  judge  who 
presided  at  the  trial.  Neither  the  evidence  adduced  at  the 
trial  of  the  issues,  nor  the  evidence  adduced  in  support  of  a 
motion  for  a  new  trial,  forms  any  part  of  the  record,  unless 
made  so  by  a  bill  of  exceptions.^  In  order  to  save  an  ex- 
ception to  the  refusing  of  a  new  trial  on  the  ground  of  mis- 
conduct of  the  jury,  the  affidavits  adduced  in  the  court  below 
to  show  such  misconduct  must  be  brought  to  the  attention  of 
the  revising  court  by  a  bill  of  exceptions  ;  they  will  not  be 
considered  for  any  purpose  when  they  are  merely  copied  inta 
the  record  by  the  clerk.*  It  is  not  sufficient,  in  order  to 
save  an  exception  to  the  ruling  of  the  court  on  such  a  mo- 
tion, for  the  bill  of  exceptions  to  show  that  the  party  com- 
plaining offered  to  prove  that  the  jury  had  been  guilty  of  a 
certain  misconduct.  He  must  make  his  tenders  of  proof 
by  affidavits  or  otherwise,  and  must  put  them  in  his  bill  of 
exceptions,  so  that  the  revising  court  may  see  by  what  evi- 

1  United  States  v.  Gamble,  10  Mo.  457;  State  v.  Eldridge,  65  Mo.  584; 
Collins  V.  Barding,  G5  Mo.  496;  Jefferson  City  v.  Opel,  67  Mo.  394; 
Sturdivant  v.  Watkins,  47  Mo.  177;  State  v.  Shehaue,  25  Mo.  565; 
Christy  v.  Myers,  21  Mo.  112;  State  v.  Wall,  15  Mo.  208. 

2  Bateson  v.  Clark,  37  Mo.  31 ;  State  v.  Matson,  38  Mo.  489. 

3  Fryberger  V.  Perkins,  66  Ind.  19. 

*  Stott  V.  Smith,  70  Ind.  298,  305.  It  was  laid  down  in  an  early  case  in 
Arkansas  that  when  it  docs  not  appear  that  the  misconduct  of  the  jurors 
was  in  consequence  of  the  act  of  either  of  the  parties,  then  the  evidence 
shall  be  spread  upon  the  record  for  the  consideration  of  the  appel- 
late tribunal;  otherwise  the  court  will  support  tlie  verdict  and  judgment 
of  the  court  below,  if  by  any  intendment  it  can  be  done.  I'elham  v.. 
Page,  6  Ark.  535,  539. 


§   435.]    PRESUMPTION  THAT  JURY  ACTED  REGULARLY.  535 

dence  he  oftered  to  prove  it,  and  whether  such  evidence  was 
sufficient.^ 

§  435.   Presumption    that  the  Jury   acted   regiilarly. — 

The  presumption  of  right  acting,  which  obtains  with  refer- 
ence to  the  conduct  of  every  person  in  official  life  unless 
the  contrary  is  shown,-  obtains,  it  seems,  in  full  force  with 
reference  to  the  conduct  of  jurors  ;  and  accordingly,  a  ver- 
dict will  not  be  set  aside,  even  in  a  criminal  case,  upon  a 
bare  suspicion  that  they  were  tampered  with  or  acted  im- 
properly ;  or  where  the  evidence  does  not  make  out  a  fair 
presumption  that  they  were,^  or  leaves  it  more  probable 
that  they  were  not.^  The  judge  is  not  bound,  on  such  an 
application,  to  give  credit  to  the  affidavits  on  which  it  is 
based,  even  though  they  are  uncontradicted  by  other  affida- 
vits.^ So  sensible  were  the  Superior  Court  of  South  Caro- 
lina of  the  evils  that  would  flow  from  the  practice  of  listen- 
ing with  freedom  to  affidavits  intpeaching  the  conduct  of 
jurors,  that  they  laid  down  the  rule  that  no  such  affidavits 
should  in  future  be  received,  unless  copies  of  them  should 
be  previously  served  on  the  juror  or  jurors  whose  conduct 
was  in  question,  and  a  reasonable  time  given  to  the  incul- 
pated juror  to  answer  them  on  oath  ;  ^  and  this  practice  was 
afterwards  followed.^ 

1  Jones  V.  Com.,  31  Gratt.  830. 

2  Broom  Leg.  Max.  495;  Hicks  v.  Ellis,  65  Mo.  176,  184. 
s  People  V.  Williams,  24  Cal.  31,  38;  i)ost,  §§  436-439. 

<  Mathis  V.  State,  18  Ga.  343. 

5  State  V.  Duestoe,  1  Bay,  377,  380.  •'For  it  was  the  duty  of  the 
jiulges  to  judge,  from  the  necessity  of  the  case,  not  onlj^  of  the  credi- 
bility of  the  witnesses  brought  forward  in  this  manner  to  destroy  the 
verdict  of  twelve  men  upon  their  oatli,  but  to  inquire  into  and  sift  such 
affidavits  with  an  exact  and  scrupulous  attention,  and  to  direct  any 
other  examinatioMS  which  could  in  any  manner  develop  the  truth  of  the 
matter;  as  no  body  of  men  can,  at  this  stage  of  tlie  proceedings,  talie  it 
under  consideration  but  the  judges."    Ibid.,  per  Curiam. 

6  State  V.  Duestoe,  supra. 

7  McCluney  v.  Lockhart,  1  Bailey,  117;  State  v.  Harding,  2  Bay,  267. 
It  was  necessary  to  serve  such  papers  or  copies  before  the  rise  of  the 
court.  Key  v.  Holeman,  2  Bay,  315;  Pulaski  v.  AVard,  2  Ricli.  L.  119. 
In  the  latter  case  this  rule  as  to  the  time  of  making  the  application  was 
said  not  to  be  inflexible.    See  in  this  connection  post,  §  440. 


536  NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES.    [CH.  XXI. 

§  48(5.  Evidence  to  establish  MiscoiHliut  must  be  Clear 
aud  Positive.^  —  Under  any  circumstances  it  requires  the 
clearest  i)r()of  of  misconduct  on  the  part  of  the  jury,  or  of 
some  member  of  it,  to  justify  the  setting  aside  of  their 
verdict.  The  mere  statement  by  an  affiant  of  his  impres- 
sion of  improper  conduct  will  not  be  sufficient.^  So,  where 
affidavits  are  made  tending  to  show  bias  on  the  part  of  some 
of  the  jurors,  unknown  to  the  defendant  till  after  verdict, 
and  the  counter  affidavits  of  the  jurors  leave  the  proof  in 
equilibrio,  a  new  trial  will  not  be  granted.  The  burden 
being  on  the  defendant  to  show  misconduct,  he  must  make 
out  a  case  at  least  by  preponderating  evidence.^  So,  as 
elsewhere  seen,  although  the  courts  strongly  discountenance 
the  practice  of  jurors  eating  or  drinking  at  the  expense  of 
one  of  the  parties  to  the  suit,'*  yet  where  such  misconduct 
is  charged  against  them,  the  law,  it  is  said,  exacts  clear  and 
explicit  jjroof .  Accordingl}^  where  a  trial  lasted  for  seve- 
ral days,  the  fact  that  the  plaintiff  was  seen  to  drink  with 
some  of  the  jurors  at  the  tavern  where  the  latter  stayed, 
and  that  one  of  them  ate  with  him,  and  the  further  fact 
that,  after  the  motion  for  a  new  trial  was  made  on  this 
ground,  the  plaintiff  was  heard  to  say  that  no  one  but  him- 
self could  prove  the  fact  of  his  treating  the  jury, —  was 
not  a  sufficient  showing  of  misconduct  to  warrant  a  new 
trial. 5 

§  437.  Affidavit  based  on  Information  and  Belief  not 
sufficient. —  An  affidavit  for  a  new  trial  charging  the  jury 
with  misconduct  will  not  be  sufficient,  if  based  merely  on 
information  and  belief.  The  rule  rests  on  the  same  princi- 
ple as  that  which  excludes  secondary  evidence,  until  it  is 
made  to  appear  that  better  evidence  is  accessible.  Such  an 
affidavit  must  disclose  from  whom  the  affiant  acquired  his 


'  Johnson  v.  Root.  2  Cliff.  108,  128;  s.  c,  2  Fisher's  Pat.  Cas.  291. 

2  Mullins  V.  Cottrell,  41  Miss.  291,  326. 

3  State  v.  Duniphey,  4  Minn.  438;  State  v.  Ayer,  23  N.  H.  301,  321. 
^  Ante,  §  372. 

*  McCausland  v.  McCaiisland,  1  Yeatiis,  372. 


§   439.]  PRESUMPTION  FROM  IMPROPER  CONDUCT.  537 

information,  und  it  must  appear  why  the  testimony  of  such 
person  cannot  be  had.^ 

§  438.  Distinction  between  Proof  of  the  Fact  of  Mis- 
conduct and  Pi'oof  of  its  Effect. —  But,  while  it  requires 
clear  and  satisfactory  proof  to  establish  misconduct  in  a 
member  of  a  jury,  when  misconduct  is  thus  established,  it 
is  not  necessary  that  it  should  certainly  appear  that  preju- 
dice resulted  from  it.  If  the  misconduct  was  of  such  a 
nature  that  prejudice  micjld  have  resulted  from  it,  a  pre- 
sumption of  prejudice  arises,  which,  unless  rebutted  by  the 
successful  party,  will  require  the  granting  of  a  new  trial. ^ 
This  has  been  applied  in  civil  cases,  though  not  to  the 
same  extent  as  in  criminal  cases. ^ 

§  439.  Presumption  where  improper  Conduct  or  Influ- 
ence is  Shown.  —  Where  facts  are  established  which  show 
that  improper  influences  were  brought  to  l)ear  upon  the 
jury,  or  that  they  were  guilty  of  improper  conduct,  such 
as  might  have  resulted  prejudicial!}'  to  the  losing  party,  a 
presumption  arises  against  the  purity  of  their  verdict ;  and 
unless  there  is  testimony  which  shows  that  their  verdict 
was  not  affected  by  such  influence  or  conduct,  it  will  be  set 
aside;*  and    the   burden   of    producing   such   testimony  is 

1  People  V.  Williams,  24  Cal.  31,  38;  Cummins  v.  Crawford,  88  111.  312; 
post^  §  445. 

2  .Johnson  v.  Eoot,  2  Cliff.  108,  128.  Iii  Mississippi  the  doctrine  seems 
to  be  that  in  capital  cases  a  separation  of  the  jury  conclusively  vitiates 
the  verdict  and  entitles  the  prisoner  to  a  new  trial;  but  "  in  all  other  cases 
of  irregularity ,  in  which  it  may  be  made  to  apjiear  that  tlie  jury,  during 
the  trial,  liave  been  exposed  to  improper  influence  which  might  have 
affected  the  puritj'  of  tlieir  verdict,  such  exposure  shall  vitiate  their 
verdict,  unless  it  affirmativelj'  appear  that  such  influence  failed  to  have 
any  effect  in  procuring  it.'"     Woods  v.  State,  43  Miss.  364,  372. 

'"■Upon  the  subject  of  the  misconduct  of  the  jury,  the  practice  in 
this  country  appears  to  have  resolved  itself  into  the  exercise  of  a  judi- 
cial discretion,  confining  the  motion  for  a  new  trial  to  the  question  of 
abuse,  and  invariably  denying  tlie  application  where  no  injury  has  re- 
sulted."   English,  J.,  in  Collier  v.  State,  20  Ark.  36,  50. 

■♦Pope  V.  State,  36  Miss.  121,  136;  Ned  v.  State,  33  Miss.  364,  372; 
•Organ  v.  State,  26  Miss.  83;  Hare  v.  State,  4  How.  (Miss.)  187;  McCann 
v.  State,  9  Smed.  &  M.  465,  469;  Phillips  v.  Com.,  19  Gratt.  485;  Eiley 
w.  State.  9  Humph.  646;  Xesmith  v.  Clinton  Fire  Ins.  Co.,  8  Abb.  Pr. 


538  NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES.    [CH.  XXI. 

upon  the  party  chiiniing  the  right  to  keep  the  verdict.  The 
rule  is  one  of  public  policy.  In  order  to  preserve  pub- 
lic confidence  in  the  administration  of  justice,  it  is  not 
only  necessary  that  judicial  trials  should  be  conducted 
with  reasonable  regularity,  but  that  verdicts  should  ])e  free 
from  the  taint  of  susi)icion  of  improper  conduct  or  in- 
fluences. "The  result  of  the  authorities  is,"  as  is  well 
stated  by  Chief  Justice  Shaw,  "that  where  there  is 
an  irregularity  which  may  affect  the  impartiality  of  the  pro- 
ceedings, as  where  meat  and  drink  or  other  refreshment 
has  been  furnished  by  a  party  ;  or  where  the  jury  have- 
been  exposed  to  the  effect  of  such  influence,  as  where  they 
have  improperly  separated  themselves,  or  have  had  communi- 
cations not  authorized, —  there,  inasmuch  as  there  can  be  no 
certainty  that  the  verdict  has  not  been  improperly  in- 
fluenced, the  proper  and  appropriate  mode  of  correction  or 
relief  is  by  undoing  what  is  thus  improperly,  and  may  have 
been  corruptly,  done.  Or,  where  the  irregularity  consists 
in  doing  that  which  may  disqualify  the  jurors  for  proper 
deliberation  and  exercise  of  their  reason  and  judgment,  as 
where  ardent  spirits  are  introduced,  there  it  would  be 
proper  to  set  aside  the  verdict,  because  no  reliance  can  be 
placed  upon  its  purity  and  correctness.  But  where  the 
irregularity  consists  in  doing  that  which  does  not  and  can- 
not affect  the  impartiality  of  the  jury,  or  disqualify  them 
for  exercising  their  powers  of  reason  and  judgment,  a& 
where  the  act  done  is  contrary  to  the  ordinary  forms,  and 
to  the  duties  which  jurors  owe  to  the  public,  the  mode  of 
correcting  the  irregularity  is  by  animadversion  upon  the 
conduct  of  the  jurors  or  of  the  ofiicers  ;  but  such  irregu- 


141;  Com.  v.  Shields,  2  Bush.  81;  Davis  v.  State,  35  Ind.  496;  West- 
moreland V.  State,  45  Ga.  225,  282;  State  v.  Fox,  Ga.  Decis.,  Pt.  I,  p.  35;, 
State  V.  Negro  Peter,  Ga.  Decis.,  Pt.  I,  p.  46;  State  v.  Ciicuel,  31  N.  J. 
L.  249,  259;  Madden  v.  State,  1  Kan.  340,  354;  Coker  v.  State,  20  Ark. 
53,  60;  Stanton  v.  State,  13  Ark.  317,  320;  Cornelius  v.  State,  12  Ark. 
782,  809;  Stone  v.  State,  4  Humph.  27;  People  v.  Brannigan,  21  Cal. 
340;  People  v.  Turner,  39  Cal.  370,  375;  Monroe  v.  State,  5  Ga.  85,  152. 


§   440.]   AFFIDAVITS  OF  JURORS  TO  IMPEACH  VERDICT.  539 

larity  has  no  tendency  to  impair  the  respect  due  to  such 
verdict."  ^ 

Stated  in  another  way,  where  the  evidence  adduced  on  a 
motion  for  a  new  trial  shows  that  the  jury  were  not  in  any 
way  influenced,  biased,  or  prejudiced  by  the  exposure,  the 
verdict  will  not  be  disturbed  ;  but  unless  it  is  proved  that  it 
failed  of  an  effect,  the  presumption  will  be  against  the 
purity  of  the  trial,  and  the  verdict  will  be  set  aside. ^  Ac- 
cordingly, where  it  is  made  to  appear  that  what  may  have 
appeared  to  be  an  improper  influence  upon  the  jury,  was 
not  so  in  fact,  a  new  trial  will  be  refused.^  And  this  rule 
must  always  be  accepted  with  the  qualification  that  this  pre- 
sumption will  not  arise  unless  the  irregularity  was  of  such 
a  character  that  its  natural  tendency  was  to  influence  or 
prejudice  the  jury  against  the  unsuccessful  party,  or,  at 
least,  to  interfere  in  some  degree  with  the  proper  discharge 
of  their  duties.^ 

§  440.  Testimony  of  Jvirors  not  i^eceived  to  Impeach 
their  Verdict.  — Upon  grounds  of  public  policy,  the 
courts  have  almost  universally  agreed  upon  the  rule  that 
no  affidavit,  deposition,  or  other  sworn  statement  of  a 
juror  will  be  received  to  impeach  the  verdict,^  to  explain 

1  Com.  V.  Roby,  12  Pick.  496,  519. 

2  Thompson  v.  State,  26  Ark.  323,  328. 

3  McKenzie  v.  State,  26  Ark.  334,  343;  Collier  v.  State,  20  Ark.  36,  50. 

*  "Some  irregularities,"  says  the  Supreme  Court  of  Louisiana,  "  are 
of  so  gross  a  character  that  a  prejudicial  effect  may  be  presumed.  *  *  * 
But  we  will  not  presume  it  because  it  is  barely  possible.  We  should  re- 
gard jurors  as  rational  men,  capable  of  performing  the  high  duties 
which  the  constitution  and  laws  impose  upon  them.  The  constitution 
and  laws  charge  them  to  judge  of  the  issues  upon  which  life,  liberty  and 
propei'ty  depend.  The  law  presumes  them  to  possess  the  capacity  and 
integrity  to  perform  those  duties  correctly,  and  that  they  will  not  be 
swerved  from  their  performance  by  improper  influences;  and  we  will 
not  presume  or  decide  the  contrary  until  it  appears  by  proof,  or  necessa- 
rily results  from  their  gross  misconduct."  State  v.  Bradlej^  6  La.  An. 
554,  560.     See  also  Stone  v.  State,  4  Humph.  27,  38. 

*  Holmead  v.  Corcoran,  2  Cranch  C.  C.  119;  Dana  v.  Tucker, 
4  Johns.  487;  McCray  v.  Stewart,  16  Ind.  377;  Ladd  v.  Wil- 
son, 1  Cranch  C.  C.  5;  Pleasants  y.  Heard,  15  Ark.  403;  Amsby 
V.    Dickhouse,    4    Cal.    102;    Castro  v.    Gill,  5    Cal.    40;    Bennett    v. 


r)4()  NEW  TRIALS  FOli  MISCONDUCT  OF  JURIES.     [CII.  XXI. 

State,  3  Iiul.  167;  Com.  v.  Drew,  4  Mass.  391,  399;  Jolmsoii  v.  Daven- 
port, 3  J.  J.  Marsh.  393;  Miirdook  v.  Sumner,  ±2  Pick.  loG;  State  v. 
Doon.  R.  M.  Cliarlt.  1;  Cook  v.Castner.9  Cu>;h.  2G6;  Cain  v.  Cain,  1  B. 
Hon.  213;  Folsom  v.  Maneiiester,  11  Ciisli.  334;  Boston,  etc,  R.  Co.  v. 
Dana,  1  Gray,  S3;  Chadbourn  v.  Franklin,  5  Gray,  312:  State  v.  Cou- 
penhaver,  39  Mo.  430;  Pratte  v.  Coffman,  33  Mo.  71;  Folsom  v.  Brawn, 
25  N.  H.  114;  Leighton  v.  Sargent,  31  N.  H.  119;  Suttrell  v.  Dry,  1 
Murph.  94;  Schenck  v.  Stevenson,  2  N.  J.  L.  387;  Den  v.  McAllister,  7 
N.  J.  L.  46;  Price  v.  Warren,  1  Hen.  &  M.  385;  Brewster  v.  Tliompson, 
1  N.  J.  L.  32;  Randall  v.  Grover,  1  N.  J.  L.  151;  Bridge  v.  Eggleston, 
14  Mass,  245;  Bidl  v.  Com.,  14  Gratt.  614;  Hannum  v.  Belchertown,  19 
Pick.  311;  Walker  v.  Kennison,  34  N.  II.  257;  State  v.  Tindall,  10  Rich. 
I..  212;  AVilling  v.  Swasej',  1  Browne  (Pa.),  123;  Cluggage  v.  Swan,  4 
Binney,  150;  White  v.  White,  5  Rawle,  61;  Cochran  v.  Street,  1 
Wash.  (Va.)  79;  Taylor  v.  Giger,  1  Hardin,  586;  Smith  v.  Culbert- 
son,  9  Rich.  L.  106;  Mason  v.  Russell,  1  Tex.  721;  Burns  v.  Paine, 
8  Tex.  159;  Robbins  v.  Windover,  2  Tyler,  11;  Bentley  v.  Fleming, 
1  Com.  B.  479;  Dorr  v.  Fenno,  12  Pick.  521,  .525;  Hester  v.  State, 
17  Ga.  146;  Jackson  v.  Williamson,  2  T.  R.  281;  Elliott  v.  Mills, 
lOInd.  368;  Barlow  v.  State,  2  Blackf.  114;  Conner  v.  Winton,  8  Ind. 
316;  Sinclair  v.  Roush,  14  lud.  450;  Hughes  v.Listner,  23  Ind.  396;  Ed- 
miston  v.  Garrison,  18  Wis.  594;  Haun  v.  Wilson,  28  Ind.  296;  Steele  v. 
Logan,  3  A.  K.  Marsh.  394;  Heath  v.  Conway,  1  Bibb,  398;  State  v. 
Caldwell,  3  La.  An.  435;  Cire  v.  Rightor,  11  La.  140;  State  v.  Mil- 
lican,  15  La.  An.  557;  State  v.  Brette,  6  La.  An.  653;  Bishop  v. 
Georgia,  9  Ga.  121;  Jacobs  v.  Dooly,  1  Idaho,  36;  Lawrenae  v.  Bos- 
well,  Sayer,  100;  Stanton  v.  State,  13  Ark.  317;  Halght  v.  Tur- 
ner, 21  Conn.  593;  State  v.  Freeman,  5  Conn.  348;  Clark  v.  Car- 
ter, 12  Ga.  500;  Brown  v.  State,  28  Ga.  199;  Coleman  v.  State,  28  Ga.  78; 
McElven  v.  State,  30  Ga.  869;  Hoj^e  v.  State,  39  Ga.  718;  King  v.  King, 
49  Ga.  622;  Anderson  v.  Green,  46  Ga.  361;  Moughon  v.  State,  59  Ga. 
309;  Oatisv.  Brown,  59  Ga.  711;  Hill  v.  State,  64  Ga.  453;  Coker  v. 
Hayes,  16  Fla,  368;  Forester  v.  Guard,  1  111.  44;  Peck  v.  Brewer,  48  111. 
.54;  Martin  v.  Ehrenfels,24  111.  187;  Xiccolls  v.  Foster,  89  111.386;  Brad- 
ford V.  State,  15  Ind.  347;  Dunn  v.  Hall,  8  Blackf.  32;  Stanley  v.  Suther- 
land, 54  Ind.  339;  Butt  v.  Tuthill,  10  Iowa,  585;  Stewart  v.  Burlington 
etc.  R.  Co.,  11  Iowa,  62;  Hall  v.  Robison,  25  Iowa,  91 ;  Cowles  v.  Chi- 
cago, etc.  R.  Co.,  32  Iowa,  515;  Cook  v.  Sypher,  3  Iowa,  484;  Garretty 
v.  Brazell,  34  Iowa,  100;  Wright  v.  111.  Tel.  Co.,  20  Iowa,  195; 
State  V.  Home,  9  Kan.  119;  Perry  v.  Bailey,  12  Kan.  539;  John- 
son V.  Husband,  22  Kan.  277;  Doran  v.  Shaw,  3  T.  B.  Mon.  415; 
Com.  V.  Skeggs,  3  Bush,  19;  Greeley  v.  Mansur,  64  Me.  211;  State 
V.  Pike,  65  Me.  Ill;  Bradt  v.  Rommel,  26  Minn.  505;  State  v.  Stokely, 
16  Minn.  282;  State  v.  Mims,  26  Minn.  183;  Riggs  v.  State,  26  Miss.  51 ; 
Friar  v.  State,  3  How.  (Miss.)  422;  Lucas  v.  Cannon,  13  Bush,  650; 
Campbell  v.  Miller,  IMart.  (N.  S.)  514;  Digard  v.  Michaud,  9Rob.  (La.) 
387;  Sawyer  v.  Hannibal,  etc.  R.  Co.,  37  Mo.  240;  State  v.  Underwood, 
57  Mo.  40;  State  v.  Branstetter,  65  Mo.  149;  State  v.  Alexander,  66  Mo. 
148;  Ryan  v.  Kelly,  9  Mo.  App.  591;  Leighton  v.  Sargent,  31  N.  H.120; 


§  440.]   AFFIDAVITS  OF  JURORS  TO  IMPEACH  VERDICT.  541 

State  V.  Ayer,  23  N.  H.  301 ;  Breck  v.  Blanchard,  27  N.  H.  100;  Brewster 
V.  Thompson,  1  N.  J.  L.  32;  Dare  v.  Ogden,  1  N.  J.  L.  91;  Hutchinson 
V.  Consumer's  Coal  Co.,  36  N.  J.  L.  24;  Nichols  v.  Suncook  Man.  Co., 
24  N.  H.  437;  People  v.  Hartung  4Park.  Cr.  R.256;  s.  c,  8Abb.  Pr.  132; 
Brownell  v.  McEwea,  5  Denio,  367;  People  v.  Carnal,  1  Park.  Cr.  R.  25G; 
Green  v.  Bliss,  12  How.  Pr.  429;  Gale  t.  New  York,  etc.  R.  Co.,  53  How. 
Pr.  385;  State  v.  Smallwood,  78  N.  C.  560;  State  v.  McLeod,  1  Hawks,. 
344;  Taylor  v.  Everett,  2  How.  Pr.  23;  Lindauer  v.  Teeter,  41  N.  J.  L. 
256;  Fish  v.  Cantrell,  2  Heisk.  578;  Scott  v.  State,  7  Lea,  232;  Mason  v. 
Russell,  1  Tex.  721 ;  Davis  v.  State,  43  Tex.  189;  Clark  v.  Read.  5  N.  J. 
L.  486;  Johnson  v.  State,  27  Tex.  759;  Sheldon  v.  Perkins,  37  Vt.  550; 
Downer  v.  Baxter,  30  Vt.  467;  Read  v.  Com.,  22  Gratt.  924;  Thomas  v. 
Jones,  28  Gratt.  383 ;  Steptoe  v.  Flood,  31  Gratt.  323 ;  Cherry  v.  Sweeny, 
1  Cranch  C.  C.  530;  Custiss  V.Georgetown  Turnpike  Co.,  2  Crauch  C. 
C.  81;  Howard  v.  Cobb,  3  Day,  310;  Cline  v.  Bray,  1  Oreg.  89;  Meade 
V.  Smith,  16  Conn.  346. 

In  an  early  case  in  New  Jersey,  the  rule  was  upheld  with  so  much 
stringency,  that  where  a  juror  had  sworn  that  he  was  induced  to  agree  to 
the  verdict  by  being  unwell,  his  affidavit  was  handed  over  to  the  State's 
Attorney,  to  belaid  before  the  grand  jury  as  a  foundation  for  a  criminal 
prosecution  for  misbehavior.  Dare  v.  Ogdeu,  1  N.  J.  L.  91.  A  case  in 
New  Jersey  states  the  rule  in  a  qualified  form  thus  :  That  whilst  the  affi- 
davit of  a  juror,  or  his  admissions,  are  not  competent  testimony  to  prove 
his  own  misconduct,  yet  such  misconduct  may  be  shown  by  the  oath  of  a 
fellow  juror  who  is  not  inculpated  therein.  Deacon  v.  Shreve,  22  N.  J. 
L.  176.  We  have  not  found  this  qualification  of  the  rule  in  any  other 
case,  and  do  not  think  it  is  sound. 

In  an  early  case  in  Massachusetts,  it  was  held  that  a  new  trial  would  be 
granted  for  gross  misbehavior  of  the  jury  (in  the  particular  case  agree- 
ing upon  their  verdict  by  average) ,  and  that  the  affidavit  of  a  juror  would 
be  admitted  to  prove  that  fact.  Grinnell  v.  Phillips,  1  Mass.  530.  But 
this  case  is  unquestionably  overruled  by  subsequent  decisions  in  that 
State.     Dorr  v.  Fenno,  12  Pick.  521. 

In  an  old  case  in  New  York,  it  was  held  that  the  confessions  of  jurors 
might  be  heard  to  set  aside  their  verdict,  and  so  might  their  affidavits. 
In  that  case  the  confessions  were  received  to  show  that  the  verdict  was 
a  quotient  verdict.  Smith  v.  Cheatham,  3  Caines,  56.  But  this  case  is 
overruled.  Dana  v.  Tucker,  4  Johns.  488.  In  a  later  case  it  was  held 
that  affidavits  of  jurors  were  admissible  to  show  that  they  had  adopted  a 
principle  in  estimatino;  damages  not  allowed  by  law;  though  not  to  ac- 
cuse themselves  of  misconduct.     Sargent  v. ,  5  Coweu,  106.     In 

another  case  it  is  held  that  such  affidavits  cannot  be  received  to  show  a 
mistake  of  the  jury  in  making  up  their  verdict,  unless  such  mistake  is 
produced  by  circumstances  passing  at  the  trial  which  are  equivalent  to  a 
misdirection  by  the  judge.  Ex  parte  Caykendoll,  6  Cowen,  53.  Such 
affidavits  have  been  held  admissible  to  show  that  there  was  a  mistake  in 
taking  down  their  verdict  when  they  returned  it  into  court,  and  that  it 
was  entered  differentlj'  from  what  they  intended.  Upon  this  point  the 
court  say  that  "  the  information  afforded  by  the  affidavits  of  juries  is 


542  NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES.    [CH.  XXI. 

it/  to  show  on  whut  grounds  it  was  rendered,'^  or  to  show 
a  mistake   in  it;^   or  that  they   misunderstood   the  charge 

not  to  impeach  but  to  support  the  verdict  really  given  by  them."  Jack- 
eon  V.  Dickenson,  15  Johns.  310.  And  where,  in  an  action  of  trespass 
against  several  defendants,  the  jury  returned  a  verdict  against  all  of 
them,  and  left  the  court-room,  it  was  held  that  it  was  competent  for 
them,  upon  returning  immediately  into  court,  to  show  that  the  verdict 
had  been  given  through  mistake,  and  to  correct  it  by  finding  against 
some  of  the  defendants  only.  Prussel  v.  Knowles,  4  How.  (Miss.)  90. 
Contra,  Little  v.  Larrabee,  2  Me.  37,  where  under  similar  circumstances 
the  verdict  was  set  aside. 

In  an  early  case  in  Illinois  it  is  held  that  affidavits  of  jurors  will  not  be 
heard  to  impeach  their  verdict,  excejjt  in  a  case  where  a  part  of  the 
jurors  sware  that  they  never  consented  to  the  verdict.  Smith  v.  Eames, 
4' 111.  76.  It  need  scarcely  be  suggested  that  this  decision  is  not  law. 
The  last  thing  that  a  court  will  listen  to  is  an  afHdavit  of  a  juror  con- 
tradicting the  verdict  which  he  has  solemnly  rendered  in  open  court, 
under  the  obligation  of  his  oath  as  a  juror.  If  he  does  not  agree  to  the 
verdict  when  it's  announced  in  court,  he  must  speak  then,  or  after  hold 
his  peace.     Infra,  §  441. 

In  a  case  in  Missouri  it  is  said  by  Bay,  J. :  "  While  we  are  disposed 
to  adopt  the  rule  as  a  general  rule  of  policy,  still  we  think  that  cases 
may  arise,  particularly  when  life  and  limb  are  at  stake,  which  may  call 
for  a  departure  from  the  rule.  As,  for  instance,  when  the  court  shall 
have  reason  to  believe  from  evidence  derived  from  other  sources  than 
the  affidavits  of  the  jurors  that  there  has  been  such  misconduct  on  their 
part  as  to  inlluence  their  verdict,  we  see  no  good  reason  why  the  affi- 
davit of  a  juror  might  not  be  received  for  the  purpose  of  explaining 
or  enlarging  such  evidence."  Pratte  v.  Coffman,  33  Mo.  71,  78.  This, 
it  is  believed,  is  unsound. 

1  People  V.  Hosmer,  1  Wend.  297;  Jeter  r.  Heard,  12  La.  An.  3;  Staf- 
ford V.  State,  55  Ga.  591;  Lloyd  v.  McClure,  2  G.  Greene,  139;  Com.  v. 
Skeggs,  3  Bush,  19;  Smith  v.  Smith,  50  N.  H.  212. 

2  Sheldon  v.  Perkins,  37  Vt.  550;  Tucker  v.  South  Kingstown,  5  R.  I. 
558;  Price  v.  Warren,  1  Hen.  &  M.  385;  Brownell  v.  McEwen,  5  Denio, 
367;  Larkins  v.  Tarter,  3  Sneed,  681;  Heath  v.  Conway,  1  Bibb,  398; 
Taylor  v.  Giger,  Hardin,  588;  Jeter  v.  Heard.  12  La.  An.  3;  Mirick  v. 
Hemphill,  Hempst.  179;  Clark  v.  Carter,  12  Ga.  500;  Coker  v.  Hayes, 
16  Fla.  368;  Ward  v.  State,  8  Blackf.  101 ;  Ford  v.  State,  12  Md.  514;  St. 
Martin  v.  Desnoyer,  1  Minn.  156;  Folsom  v.  Brawn,  25  N.  H.  114;  Lin- 
dauer  v.  Teeter,  41  N.  J.  L.  256;  Danville  Bank  v.  Waddill,  31  Gratt. 
469;  Buchanan  v.  Reynolds,  4  West  Va.  681 ;  Lewis  v.  McMullin,  5  West 
Va.  582. 

3  Duhon  V.  Landry,  15  La.  An.  591;  Haight  v.  Turner,  21  Conn.  593; 
Clark  V.  Carter,  12  Ga.  500;  Withers  v.  Fiscus,  40  Ind.  131;  Bosley  v. 
Chesapeake  Ins.  Co.,  3  Gill  &  J.,  473,  note;  Wells  v.  State,  11  Neb.  409; 
Ex  parte  Caykendoll,  6  Cow.  53;  Kelly  v.  Sheehy,  8  Daly,  29;  Lester  v. 


§   440.]   AFFIDAVITS  OF  JURORS  TO  IMPEACH  VERDICT.  543 

of  the  court ;  ^  or  that  they  otherwise  mistook  the  law, 
or  the  result  of  their  tindiug;"^  or  that  they  agreed 
on  their  verdict  by  average,^  or  by  lot.*  The  rule  has 
been  held  specially  applicable  to  the  case  of  a  verdict 
on  an  issue  out  of  chancery-^  It  has  been  attempted 
to  show,  by  evidence  of  this  kind,  that  the  jury  misap- 
prehended the  effect  of  their  verdict  as  to  the  costs ;  '^ 
that  the  foreman  of  the  jury,  after  they  had  retired,  had 
gone  from  the  jury-room,  in  order  to  learn  from  persons 
not  of  the  jury,  the  amount  of  damages  which  ought  to  be 
found  in  order  to  carry  costs  ;  ^  that  the  jurors  making  the 
affidavit  were  influenced  in  their  verdict  by  information 
given  by  one  of  the  jurors  in  the  jury-room  ;  ^  that  they 
had  intended  to  give  the  plaintiff  a  greater  amount  of  dam- 
ages, and  conceived  that  the  verdict  which  they  rendered 
was  for  such  increased  sum.^  But  in  these  and  other 
like  cases  the  courts  have  steadily  refused  to  listen  to  such 
affidavits. 

Goode,  2  Murph.  37;  Taylor  v.  Everett,  2  How.  Pr.  23;  Hutchinson  v. 
Sandt,  4  Kawle,  234;  Dunnaway  v.  State,  3  Baxt.  206;  Oregon,  etc.  R. 
Co.  V.  Oregon  Steam  Nav.  Co.,  3  Oreg.  178.  Compare  Cutler  v.  Cutler, 
43  Vt.  660. 

1  Saunders  v.  Fuller,  4  Humph.  516,  518 ;  Norris  v.  State,  3  Humph.  333 ; 
State  V.  Millican,  15  La.  An.  557.  "  It  is  sufficient  if  the  charge  be  cor- 
rect. If  the  verdict,  from  misapprehension,  be  found,  either  against 
the  law  of  the  case,  or  the  weight  of  testimony,  the  evil  can  be  easily 
remedied  by  a  new  trial  without  affidavit;  and  if  it  be  against  neither  the 
one  nor  the  other,  there  is  no  remedy  required,  and  no  necessitj'  for  in- 
vestigating the  secret  operations  of  the  minds  of  the  jurors  in  arriving 
at  their  verdict.'''     Saunders  v.  Fuller,  supra,  per  Turlej%  J. 

'  Jeter  v.  Heard,  12  La.  An.  3;  Duhon  v.  Landry,  li  La.  An.  591. 

*  Ante,  §  409;  Pleasants  v.  Heard,  15  Ark.  403;  Sawyer  v.  Hanni- 
bal, etc.  R.  Co.,  37  Mo.  241,  263;  Dana  v.  Tucker,  4  Johns.  487;  Heath 
V.  Conway,  1  Bibb,  398;  Haun  v.  Wilson,  28  Ind.  296.  Compare  Bennett 
v.  Baker,  1  Humph.  399. 

*  Owen  V.  Warburtou,  1  Bos.  &  Pul.  (N.  R.)  326.  So  ruled  in  Vasie  v. 
Delaval,  1  T.  R.  11;  Straker  v.  Graham,  4  Mees.  &  W.  721;  Burgess  v. 
Langley,  6  Scott,  (N".  R.)  518;  State  v.  Doon,  R.  M.  Charlt.  1. 

*  Steptoe  v.  Flood,  31  Gratt.  323. 

6  Folsom  V.  Brawn,  25  N.  H.  114,  123. 
'  Clum  V.  Smith,  5  Hill,  560. 

8  Price  V.  Warren,  1  Hen.  &  M.  385. 

9  Jackson  v.  Williamson,  2  T.  R.  281. 


544  NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES.    [CII.  XXI. 

§  441.  Or  to  Show  that  the  particular  Juror  did  not 
consent  to  the  Verdict. —  Neither  is  it  admissible  to  show 
by  the  oiith  of  a  juror  that  he  did  not  agree  to  the  verdict 
as  rendered  ;  ^  or  that  he  consented  to  the  return  of  the 
verdict,  without  concurring  in  it,  in  order  to  secure  his 
discharge;^  or  because  his  health  absolutely  required  him 
to  be  released  from  confinement.'^ 

§  442.  Or  to  show^  tliat  the  Jury  had  not,  in  Fact, 
agreed  upon  the  Verdict.  —  Neither  will  the  testimony  of 
jurors  be  received  to  show  that  the  jury  did  not,  in  fact, 
agree  upon  a  verdict ;  or  that  the  verdict  which  was  ren- 
dered was  not,  in  fact,  the  verdict  of  the  particular  jurors.* 
It  will  not  be  admissible  thus  to  show  that  the  verdict  was 
by  mistake  returned  as  the  verdict  of  the  whole  ^Mvy,  when 
some  of  them  were,  in  fact,  in  favor  of  finding  it  for  the 
other  party  .^ 

§  443.  Otherwise  to  show  Mistake  in  entering  the  Ver- 
dict.—  Where  the  foreman  of  a  jury,  by  mistake,  an- 
nounced a  verdict  different  from  that  agreed  to  by  the  jury, 
and  the  erroneous  statement  was  taken  as  recorded,  it  was 
held  that  the  court,  upon  application  made  at  the  same  cir- 
cuit, immediately  after  the  entering  of  the  erroneous  ver- 
dict, has  power  to  correct  the  record  so  as  to  make  the  ver- 
dict conform  to  the  actual  finding ;  and  that  the  affidavits 
of  jurors  showing  such  mistake,  might  be  received  upon 
such  application.*^  And  there  is  considerable  authority  for 
the  proposition  that  such  affidavits  will  be  received  to  show 
that  the  verdict  which  was  entered  was  delivered   by  the 

1  Johnson  v.  Davenport,  3  J.  J.  Marsh.  390,  396;  Hester  v.  State, 
17  Ga.  146;  Thomas  v.  Jones,  28  Gratt.  383;  Garretty  v.  Brazell,  34 
Iowa,  100. 

2  Scott  V.  State,  7  Lea,  •2;>2. 

3  State  v.  Stokely,  16  Minn.  282;  Dare  v.  Ogden,  1  N.  J.  L.  91. 

■*  Reaves  v.  Moody,  15  Ricli.  L.  312;  Boetge  v.  Landa,  22  Tex.  10.>; 
Cochran  v.  Street,  1  Wash.  (Va.)  79;  Cire  v.  Rightor,  11  La.  140. 

*  Two  jnrors  made  affidavit  that  the}^  were  mistaken  in  the  verdict 
when  they  rendered  it;  that  they  thought  they  were  finding  for  the  op- 
posite party.  It  was  held  that  the  affidavit  could  not  be  received  on  a 
motion  for  a  new  trial.     Cire  v.  Riglitor,  11  La.  140. 

'  Dalrymplc  v.  Williams,  63  N.  Y.  361.     Folger,  J.,  dissented. 


§   443.]  MISTAKE  IN  ENTERING  THE  VERDICT.  545 

foreman,  or  taken  down  by  the  clerk  of  the  court,  by  mis- 
take, and  that  it  Avas  not  the  actual  verdict  which  the  jury 
returned.^ 

1  Cogan  V.  Ebden,  1  Burr.  383;  Jackson  v.  Dickenson,  15  Jolins.  309; 
Roberts  v.  Hughes,  7  Mees.  &  W.  399;  Prnssell  v.  Knowles,  4  How. 
(Miss.)  90.  Wliere,  upon  tlie  jury  being  polled,  one  of  tliem  declared 
that  tlie  verdict  was  against  his  conscience,  and  that  lie  consented  to  it 
only  because  all  the  rest  had  agreed  to  it,  it  was  held  that  the  jury 
should  be  directed  to  retire  and  reconsider  their  verdict;  but  where, 
after  such  a  declaration  of  the  juror,  the  verdict  was  received  and  re- 
corded without  objection  from  the  party  against  whom  it  was  found,  it 
was  held  no  error  to  refuse  a  new  trial  on  that  ground.  Farrell  v.  Hen- 
nesy,  21  Wis.  632.  See  in  this  connection,  Cheney  v.  Holgatf ,  Brayt. 
(Vt.)  171 ;  Cutler  v.  Cutler,  43  Vt.  660.  It  has  been  held  that  where  the 
foreman  of  a  jury  changed  the  finding  from  guiltj^  as  accessory  after  the 
fact  to  guilt}'  simply,  without  consulting  with  the  other  jurors,  this  was 
such  an  irregularity  as  required  the  granting  of  a  new  trial.  State  v. 
Levy,  5  La.  An.  64.  In  the  leading  case  on  the  doctriie  of  the  text,  ap- 
plication to  set  aside  a  verdict  was  made  on  the  ground  that  it  was  given 
by  the  foreman  contrary  to  the  opinion  of  eight  of  the  jury.  It  appeared 
that  the  defendant  justified  under  a  right  of  waj^  over  the  plaintiff's 
ground,  to  tvw  closes  of  the  defendant,  namely,  Broadmoor,  and  three 
acres;  upon  which  two  different  issues  were  joined,  namel}',  one  upon 
the  right  of  a  way  to  Broadmoor,  the  other  upon  the  right  of  a  way  to 
the  three  acres.  And  the  foreman  gave  the  verdict  as  a  general  verdict 
for  the  defendant,  upon  both  issues.  But  eight  of  the  jury  made  affi- 
davit "  that  it  was  the  meaning  and  intention  of  the  whole  jury  to  find  the 
former  issue  for  the  defendant,  and  the  latter  for  the  plaintiff;  and  that 
this  mistake  was  discovered  by  them  an  hour  afterwards ;  but  not  till 
the  judge  was  gone  to  his  lodgings."  The  foreman  of  the  jury  de- 
clined to  make  any  affidavit,  because,  he  said,  he  should  make  himself 
appear  a  fool  to  the  court  of  king's  bench.  And  upon  the  judges  re- 
port, it  appeared  that,  though  there  was  indeed  evidence  on  both  sides, 
yet  the  weight  of  evidence  was,  as  it  appeared  to  him,  on  the  side  of  the 
plaintiff,  as  to  this  latter  issue.  The  report  goes  on  to  say  that  "  the 
court  were  all  clear  that  this  was  a  mistake  arising  from  the  jury's 
being  unacquainted  with  business  of  this  nature,  and  from  the  asso- 
ciate's omission  in  not  asking  the  jury  particularly  'how  they  found 
each  respective  issue,'  and  in  not  making  the  jurj^  fully  understand 
their  own  meaning;  and  that  it  was  agreeable  to  right  and  justice  that 
the  mistake  be  rectified.  And  they  had  no  doubt  about  the  fact  of  this 
mistake,  from  the  affidavit  of  the  eight  jurors,  confirmed  (as  they  held 
it  in  effect  to  be)  by  their  foreman's  declining  to  make  any  afiidavit  at  all ; 
especiallj'  as  the  judge's  notes  showed  the  weight  of  evidence  to  have 
been  for  the  plaintiff  as  to  this  latter  issue.  And  Lord  Mansfield  and 
Mr.  Justice  Denisou  thought  that  as  it  was  a  mere  slip,  there  might  be 
some  method  of  rectifying  the  verdict  according  to  the  truth  of  the  case, 

(35) 


546  M:w  TlilALS  FOR  MISCONDUCT  OF  JURIES.     [ciI.   XXI. 

§  444.  Court  may  intcrrojjiatc  Jury  as  to  tlie  Grounds 
of  their  Findinj;-. —  It  is  held  in  Massachusetts  that  when 
the  jury  have  returned  into  court  with  their  verdict,  before 
they  are  discharged,  and  while  yet  tliey  are  a  jury,  it  is 
competent  for  the  court  to  interrogate  them  as  to  the 
grounds  of  their  tinding,  if  there  is  more  than  one  distinct 
ground  upon  which  a  verdict  might  be  given.  The  idea  of 
these  decisions  is,  that  where  there  are  several  distinct 
grounds  upon  which  a  verdict  might  be  based,  it  is  not  im- 
proper for  tlie  judge  to  ascertain  which  ground  tlie  jury 
adopted,  since  there  may  be  little  or  no  evidence  u})on  an}' 
one  ground,  and  sutlicient  evidence  upon  another;  and  if  it 
appears  that  all  of  them  did  not  agree  upon  either  of  the 
grounds,  their  verdict  will  not  be  allowed  to  stand,  because 
unanimity  is  required.^  But  where  the  jurors,  so  questioned 
bv  the  court,  disclosed,  not  in  response  to  the  court's  ques- 
tion, their  own  misconduct, —  as  that  their  verdict  was 
agreed  upon  by  average,  in  pursuance  of  a  previous  agree- 
ment to  a))ide  by  the  result, —  such  statements  will  not  be 
listened  to  as  showing  such  misconduct,  and  the  verdict  will 
not  be  set  aside  for  that  reason.'^ 


from  the  judges  notes  if  they  were  sufficiently  particular,  without  send- 
ing the  issue  to  he  tried  over  again  at  great  expense."  Lord  Mans- 
field afterwards  proposed  to  the  counsel  who  made  the  motion  to  set 
aside  the  verdict,  that  he  should  make  a  motion  to  have  a  rule  to  show 
cause  why,  upon  reading  the  affidavits  of  those  eight  jurors,  the  verdict 
should  not  be  amended  and  set  right  according  to  the  truth  of  the  finding. 
Such  a  motion  was  afterwards  made,  and  a  rule  to  show  cause  granted; 
but  it  never  came  before  the  court  any  more,  "•  it  plainly  appearing  that 
the  court,  upon  deliberation  among  themselves,  had  come  to  the  opinion 
that  in  this  shape  the  verdict  might  be  set  right."  Cogan  v.  Ebden,  1 
Burr.  383. 

1  Parrott  v.  Thacher,  9  Pick.  ■12G;  Pierce  v.  Woodward,  G  Pick.  206; 
Spoor  v.  Spooner,  12  Met.  281.  This  rule  was  adopted  in  the  United 
States  Circuit  Court  for  Massachusetts,  by  Curtis,  J.  Biggs  v.  Barry,  2 
Curt.  C.  C.  259.    See  also  Cogan  v.  Ebdeu,  1  Burr.  383. 

-  Dorr  v.  Fenno,  12  Pick.  521,  the  court  saying:  "The  question  was 
proper,  but  the  answer  was  irrelevant,  and  seems  to  us  to  be  inadmis- 
sible. Now,  the  jury  may  have  been  guilty  of  misbehavior,  but  if  so.  we 
have  no  evidence  of  it,  and  can  derive  none  from  them." 


§   446.]    AFFIDAVITS  OF  JURORS  TO  SUSTAIN  VERDICT.  547 

§  445.  Testimony  of  Others  on  Information  derived 
from  Jurors  not  received. —  If  the  courts  refuse,  on 
grounds  of  public  policy,  to  listen  to  primary  evidence  of  a 
fact,  they  will,  of  course,  for  stronger  reasons,  refuse  to 
listen  to  secondary  evidence  of  it.  What  the  law  will  not 
allow  to  be  proved  by  the  oath  of  the  person  havino-  the 
knowledge,  it  obviously  will  not  allow  to  be  proved  by  the 
oath  of  another  person  deriving  his  information  from  the 
unsworn  statements  of  the  former  person.  It  follows  that 
the  affidavits  of  counsel,  or  other  persons,  of  the  misconduct 
of  the  jury,  upon  information  derived  from  particular 
jurors,  will  not  be  heard  to  impeach  the  verdict.  If  the 
same  grounds  of  public  policy  did  not  intervene  as  in  the 
case  where  the  fact  is  sought  to  be  proved  by  the  oath  of 
the  juror  himself,  a  consideration  of  the  infirmity  which  at- 
taches to  hearsay  testimony  would  operate  to  exclude  it.^ 

§  446.  Affidavits  of  Jurors  received  to  sustain  their 
Verdict. —  ^Yhilst  the  testimony  of  jurors  will  not  be  re- 
ceived to  impeach  their  verdict,  it  does  not  follow  that  such 
testimony  will  not  be  received  to  sustain  it  when  assailed. 
If  the  jurors  are  accused  of  misconduct,  they  may  show  by 
their  oaths,  not  only  in  their  own  vindication,  but  in  further- 
ance of  justice,  that  they  were  not  guilty  of  the  misconduct 
charo;ed  against  them.^ 

1  People  V.  Hartuug,  8  Abb.  Pr.  132 ;  People  v.  Wilsou,  S  Abb,  Pr. 
137;  Pleasants  V.  Heard,  15  Ark.  403,  411;  Hindle  v.  Birch,  8  Taunt. 
26;  Price  v.  Mcllvaiu,  2  Treadw.  Const.  (S.  C)  503;  Drummond  v. 
Leslie,  5  Blackf.  453,  455;  Allison  v.  State,  45  111.  37;  Dunn  v.  Hall,  S 
Blackf.  32;  St.  Martin  v.  Desnoyer,  1  Minn.  156;  Irish  v.  Wriglit,  8  Rob. 
(La.)  428;  State  v.  Beatty,  30  La.  An.  1266;  Smith  v.  Smith,  50  N".  H. 
212;  Gale  v.  New  York  etc.  E.  Co.,  53  How.  Pr.  385;  Aylett  v.  Jewel, 
2  W.  Bl.  1299;  Trohan  v.  McMannus,  2  La.  209;  Stone  v.  State,  4 
Humph.  27.    Compare  Rowland  v.  State, 14  Ind.  575. 

2  Dana  v.  Tucker,  4  Johns.  487;  Hix  v.  Drury,  5  Pick.  296;  Elliott  v. 
Mills,  10  Ind.  368;  Barlow  v.  State,  2  Blackf.  114;  Staunton  v.  State,  13 
Ark.  319;  Cornelius  v.  State,  12  Ark.  810;  Haun  v.  Wilson,  28  Ind.  296; 
Smith  V.  Eames,  4  HI.  70;  Peck  v.  Brewer,  48  111.  54;  Bradford  v.  State, 
15  Ind.  347;  Harding  v.  Whitney,  40  Ind.  379;  State  v.  Underwood,  57 
Mo.  40;  Smith  v.  Powers,  15  N.  H.  546;  State  v.  Hascall,  6  N.  H.  352; 
State  V.  Ayer,  23  N.  H.  301;  Tenney  v.  Evans,  13  N.  H.  462;  Hutchin- 
son V.  Consumers'  Coal  Co.,  36  N.  J.  L.  24;  Farrer  v.  State,  2  Ohio  St. 


54:8  NEW  TUIALS  FOR  MISCONDUCT  OF  JURIES.     [CH.  XXI. 

§  447.   Or  to  islioAv  Avhat  took  Place  in  Open  Court. —  It 

WHS  held  ill  the  English  Court  of  Exchequer,  thtit  the  rule- 
does  not  exclude  jur3niien  from  swearing  to  what  took  place 
ill  open  court/  but  only  to  what  took  place  in  their  private 
It  room,  or  as  to  the  grounds  on  which  they  found  their  ver- 
f  diet.  '  An  affidavit  was  accordingly  received  as  to  what  took. 
})lace  on  the  delivery  of  their  verdict.^ 

§  448.  Or  to  show  Miscoiuliict  of  Parties. —  Whilst,  as  a 
general  rule,  the  affidavits  of  jurors  will  not  be  admitted  to 
show  their  own  misconduct  for  the  pur})ose  of  impeaching 
their  verdict,  yet  such  affidavits  will  be  admitted  to  show 
the  misconduct  of  otJter  persons.  This  exception  to  the 
rule  is  supported  by  the  strongest  reasons  of  policy.  If  it 
did  not  exist,  the  attempts  of  parties,  or  their  agents,  or 
friends  to  corrupt  jurors  would  be  clothed  with  substantial 
immunity.^    Not  only  this,  but  where  there  has  been  ground. 

54;  Gilleland  v.  State,  44  Tex.  35G;  Bowen  v.  State,  3  Tex.  App.. 
617;  Anschicks  v.  State,  6  Tex.  App.  r)24;  Downer  v.  Baxter,  30  Vt.  4G7» 
Where  a  juror,  during  the  progress  of  the  trial,  has  been  temporarily  sep- 
arated from  his  fellows,  and  a  new  trial  is  asked  for  on  this  ground,  it 
is  said  to  be  the  practice  to  receive  the  afiidavit  of  the  juror  as  to  what 
took  place  with  him  during  the  sepaiation ;  and  if  his  affidavit  shows  that 
he  held  no  improper  communication  with  any  one,  listened  to  no  re- 
marks about  the  merits  of  the  case,  and  was  not  otherwise  tampered 
with,  such  affidavit  is  deemed  sufficient  to  rebut  the  presumption  against 
the  purity  of  the  verdict,  which  the  fact  of  the  separation  raises.  State 
V.  Cucuel,  31  N.  J.  L.  249,  260;  State  v.  Carstaphen,  2  Hayw.  238.  Such 
affidavits  will  always  be  closel}'  scrutinized,  and  if  the  act  of  separating 
was  in  itself  an  act  of  misconducr,  they  will  receive  little  weigiit.  Ante^ 
§  440.  Indeed,  in  the  estimation  of  some  courts,  they  are  entitled  to 
little  weight,  even  where  the  act  of  separating  was  under  the  sanction  of 
the  court.  "How  are  jurors  to  make  it  appear  that  they  were  guilty  of 
no  misconduct?  If  they  swear  generally  that  they  were  not,  thej'  swear 
to  a  conclusion  only,  depending  upon  their  sense  of  what  is  improper; 
asking  the  court  to  be  satisfied  because  they  were  satisfied.  Jurors  are 
rarely,  perhaps,  wilfully  guilty  of  improper  conduct  to  disturb  their 
verdict.  A  well-meaning  juior  who  is  unconsciously  so  guilty,  will, 
deny  it.  So  that  a  juror's  denial  of  the  conclusion  can  weigh  little.  And 
the  forms  of  improper  conduct  are  so  various  that  it  would  be  very  diffi- 
cult to  deny  them  to  the  satisfaction  of  a  court."  State  v.  Dolling,  37 
Wis.  398,  per  Kj^an,  C.  J. 

1  Roberts  v.  Hughes,  7  Mees.  &  W.  398. 

-  Ante,  §  364,  subsec.  6;  Chews  v.  Driver.  1  N.  J.  L.  166;  Keynolds  v- 


§   450.]     AFFIDAVITS  OF  JURORS  AS  TO  COMPP'.TENCY.  549 

to  suspect  that  the  jury  have  been  improperly  influenced,  it 
■seems  that  the  court  may  rightfully  interrogate  them  on  the 
subject.  Thus,  if  papers  have  ^ot  into  their  hands  which 
ought  not  to  have  got  there,  the  court  may  interrogate  the 
jurors  as  to  whether  the  papers  were  read  by  them.^ 

§  449.  Whether  adinissihle  to  show  Miscoiidiict  of 
their  Bailiff. —  It  has  been  held  that  the  affidavits  of  jurors 
-are  not  admissible  to  show  misconduct  on  the  part  of  the 
officer  havino-  them  in  charo-e  tendino;  to  influence  their  ver- 
diet, —  as  that  the  officer  gave  them  instructions  in  the  jury- 
room  ;  ^  but  the  weight  of  opinion  and  of  reason  seems  to 
be  otherwise.^ 

§  450.  Or  upon  the  Question  of  tlie  Juror's  Compe- 
tency.—  Cases  are  rare  in  which  new  trials  are  granted  on 
account  of  the  discovery  after  verdict  of  some  fact  affect- 
ing the  qualification  of  a  particular  juror  ;  *  and  where  affida- 
vits are  admitted  tending  to  show  a  disqualifying  fact,  the 
counter-affidavit  of  a  particular  juror  will  be  admitted.^ 
Whether  the  affidavit  of  a  juror  will  be  admitted  to  show 
liis  own  disqualification,  is  more  doubtful.  In  Indiana  it 
has  been  held  that  such  affidavits  are  admissible,^  In  Wis- 
consin, such  an  affidavit  was  admitted  to  show  that  the  affi- 
ant juror  was  so  ignorant  of  the  English  language  that  he 
•was  not  able  to  understand  what  the  witnesses  swore  to  at  the 
trial ;  and  it  was  held  no  error  to  o^rant  a  new  trial  for  this 
reason.'  But  in  another  case  the  affidavit  of  a  juror  was 
offered  to  show  that,  by  reason  of  indisposition,  he  was  un- 
able to  attend  to  and  understand  all  the  testimony  given  at 
the  trial.      It  was  held  that  such  an  affidavit  could  not  be 

•Champlain  Trans.  Co.,  9  How.  Pr.  7;  Ritchie  v.  Holbrooke,  7  Sergt.  &  R. 
458. 

1  Hiclts  V.  Drury,  5  Pick.  296. 

2  Dorau  v.  Shaw,  3  T.  B.  Mon.  415. 

'  Ante,  §  362,  subsec.  4.      It  may  be  here  observed  that  the  Iowa  case 
{Cole    v.   Swan,  4  G.   Greene,  32),  there  cited,  was  decided  under  a 
i  statute  since  repealed. 

4  Ante,  §  302. 

5  Ante,  §  304. 

8  Lafayette  Plank  Road  Co.  v.  New  Albany  etc.  R.  Co..  13  Ind.  90. 
■7  Shaw  V.  Fisk,  21  Wis.  368.     Se ;  ante,  §§  17/",  -259  subsec.  3. 


550  NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES.     [CH.  XXI» 

received.^  There  is  no  rule  of  pul)lic  policy  which  will  ex- 
clude evidence  of  the  declarations  of  jurors  made  before 
being  summoned  as  jurors,  which  goes  to  show  disqualifica- 
tion to  sit  in  a  particular  case  ;  and  such  evidence  is  con- 
stantly received.^ 

§  451.  Exceptional  Rule  in  Tennessee  as  to  Aflidavits 
of  Jurors. —  An  exceptional  rule  exists  on  this  sul)jcct  in 
Tennessee.  The  early  judges  of  that  State  fell  into  the 
error  of  listening  to  the  affidavits  of  jurors  to  impeach 
their  verdicts  ;  subsequent  courts  followed  the  rule  thus 
started,  but  the  later  courts  have  done  all  they  could  to 
limit  the  rule  and  restrain  its  operation.  And  they  seem  to 
be  justified  in  this  by  the  fact  that  the  rule  which  their 
early  courts  laid  down  is  not  the  rule  in  England  or  in  any 
other  State  in  the  Union.  The  first  case  in  that  State  upon 
the  subject  was  a  capital  case  which  was  before  the  Supreme 
Court  in  1821.  A  verdict  of  guilty  of  murder  was  re- 
turned, with  a  recommendation  to  the  mercy  of  the  chief 
masfistrate.  On  a  motion  for  a  new  trial,  some  of  the 
jurors  made  affidavits  that  they  never  would  have  agreed  to 
a  verdict  of  guilty  of  murder  but  for  the  agreement  that 
there  should  be  a  recommendation  of  mercy,  and  that  they 
did  not  consider  the  accused  guilty  of  murder ;  but  agreed 
to  the  verdict  under  the  belief  that  the  prisoner  would  be 
pardoned.  It  was  held  that  such  affidavits  might  be  re- 
ceived, and  that  a  good  ground  was  shown  in  the  particular 
case  for  a  new  trial. ^ 

This  doctrine  was  re-affirmed  in  1833,  in  a  case  where  the 
defendant  had  been  convicted  under  an  indictment  for  re- 
ceiving stolen  goods.  Two  of  the  jurors  made  oath  that 
another  juror  had  stated  that  he  had  put  up  a  stake  as  to 
the  result  of  the  verdict  to  be  rendered  in  the  case,  and 
that  he  believed  the  defendant  was  not  apprised  of  the  fact 
previous  to  the  trial.  They  also  made  oath  to  the  fact  that 
after  the  jury  had  retired  to  their  room,  one  of  the  jurors- 

1  Greeley  v.  M:in.«ur,  64  Me.  211. 

2  Cain  V.  Cain.  1  B.  Mon.  213. 

s  Crawford  v.  State,  2  Yer^.  GO. 


§  451.]  EXCEPTIONAL  RULE  IN  TENNESSEE.  551 

stated  to  the  rest  of  the  jury,  that  the  defendant  had  stolen 
a  hog  in  the  county,  and  that  he  made  other  statements, 
from  what  he  had  heard,  which  statements  were  not  in  evi- 
dence on  the  trial,  but  which  the  affiants  regarded  as  evi- 
dence, and  which  were  a  strong  inducement,  and  partly 
the  cause  of  their  giving  their  verdict  against  the  defendant. 
These  statements  were  held  admissible,  and  good  ground 
for  a  new  trial. ^ 

In  the  foregoing  cases,  both  of  the  opinions  were  deliv- 
ered by  Judge  Whyte.  In  a  later  case  a  person  was  in- 
dicted for  burglary  and  larceny,  and  the  case  against  him 
was  that  he  effected  an  entrance  into  the  house  by  crawling 
down  the  chimney.  After  the  jury  had  retired,  they  came 
into  court  and  requested  to  ask  a  witness  some  explanator}'' 
questions.  He  was  called  up  and  told  not  to  state  any  new 
fact ;  but,  after  having  been  asked  several  questions,  he  was 
asked  if  he  had  observed  any  soot  on  the  defendant's 
clothes,  to  which  he  answered  that  he  had.  This  fact  not 
having  been  stated  by  him  on  his  first  examination,  the 
court  told  the  jury  that  for  this  reason  the  evidence  was 
illegal.  On  a  motion  for  a  ncAv  trial,  the  affidavit  of  a 
juror  was  offered,  to  the  effect  that  he  would  not  have 
agreed  to  the  verdict,  but  for  the  fact  thus  stated  that  the 
prisoner  had  soot  on  his  clothes  the  day  after  the  offense 
Avas  committed.  The  court  held  that  this  was  not  good 
ground  for  a  new  trial  ;  that  the  principle  introduced  by  the 
previous  cases  was  a  dangerous  one  which  ought  not  to  be 
extended,  and  they  therefore  limited  it  by  holding  that  an 
affidavit  of  a  juror,  while  admissible  to  show  misconduct  of 
the  jury,  will  not  be  admitted  to  show  the  grounds  on  which 
thev  rendered  their  verdict:^  thou£>:h  a  verdict  has  been  set 
aside  l^ecause  it  was  shown  by  affidavit  that  a  juror  had  made 
statements  in  the  jury-room  supporting  the  credibility  of  a 

1  Boob}-  V.  State,  4  Yerg.  111. 

-  Hudson  V.  State,  9  Yero^.  408;  so  ruled  in  Larkins  v.  Tarter,  3  Sneed, 
681;  Lewis  v.  Moses,  6  Coldw.  193;  Galvin  v.  State.  G  Coldw.  283;  Dun- 
nawav  v.  State,  3  Baxt.  20G. 


552  NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES,     [fll.  XXI. 

nuiteriiil  witness  for  the  Stiite.^  Such  affidavits  are  also  re- 
ceived ill  that  State  to  show  that  the  jury  resorted  to  im- 
proper methods  of  arriving  at  their  verdict, —  as  that  they 
struck  their  verdict  by  average,  having  agreed  in  advance 
to  abide   by  thejjresult.'-^ 

The  reluctance  with  which  that  court  now  assents  to  the 
admission  of  affidavits  of  jurors  to  impeach  their  ver- 
dict is  illustrated  l)y  a  case  in  which  a  juror  made  an  affi- 
davit to  the  fact  that  he  was  induced  to  agree  to  the  verdict 
which  was  rendered,  by  taunts  and  a))use  of  his  fellow 
jurors.  The  affidavit  was  held  insufficient,  because  it  did 
not  state  in  what  the  taunts  and  abuse  consisted  ;  the  par- 
ticular juror  might  have  considered  the  language,  taunts 
and  abuse,  but  it  might  have  been  in  reality  nothing  more 
than  vehement  argument.'^  So,  where  the  entire  jury  made 
affidavit  that  they  had  I)ased  their  verdict  u[)()n  a  certain 
state  of  facts,  which  facts  were  neither  in  issue  nor  in  proof 
before  them,  nor  had  the  court  given  them  instructions 
with  reference  to  such  facts,  and  the  verdict  was  supported 
by  the  evidence  in  the  case,  it  was  held  no  error  to  disre- 
gard the  afHdavit  and  to  refuse  a  new  trial .^  Neither  will 
jurors  be  })erniitted  to  impeach  their  verdict  by  showing 
that  they  agreed  to  it  only  that  they  might  thereby  procure 
their  discharge.  They  will  not  be  permitted,  the  court 
say,  to  show  such  a  miserable  excuse. ° 

§  452.  Exceptional  lliile  in  Iowa. —  (1.)  Under  the 
Code  of  1851. —  The  Iowa    Code    of   1851  contained  the 

1  Donston  v.  State,  G  Humph.  27.1.  In  Fish  v.  Cuntrell,  2  Ileisk.  .578, 
it  is  said  that  "it  is  time  tliat  circuit  judi^es  had  ceased  to  allow  the 
affidavits  of  jurors  as  to  the  grounds  of  their  verdict,  to  be  read  on  mo- 
tions for  new  trials,  unless  in  extraordinary  cases." 

2  Joyce  V.  State,  7  Baxt.  273;  Elledge  v.  Todd,  1  Humph.  -13;  Crabtree 
V.  State,  3  Sneed,  302.  See  also  Bennett  v.  State,  1  Humph.  399,  and 
Harvey  v.  .Jones,  3  Humph.  157,  where  such  affidavits  were  received, 
though  a  new  trial  was  refused,  as  it  did  not  appear  that  the  jurors  had 
agreed  in  advance  to  abide  by  tlie  result. 

3  Fletcher  v.  State,  G  Hnmpli.  249. 
^  Dunnaway  v.  State,  3  Baxt.  206. 

fi  Scott  v.  State,  7  Lea,  232;  Galvin  v.  State,  6  Coldw.  283. 


§   452,]  EXCEPTIONAL  RULE  IN  IOWA.  553 

following  provision:  "In  applications  for  new  trials  the 
affidavits  of  jurors  or  officers  of  the  court  may  l)e  taken 
-and  used  in  relation  to  such  application."  ^  This  statute, 
At  will  be  perceived,  is  couched  in  very  general  language. 
It  is  omitted  entirely  from  subsequent  revisions.  It 
iseems  to  have  been  passed  for  the  pur})ose  of  declar- 
ing a  rule  previously  laid  down  by  the  Supreme  Court 
of  that  state,  wdiere  it  was  held  that  affidavits  of  jurors  might 
■be  received  to  show  that  they  entirely  misunderstood  the 
instructions  of  the  court,  which  fact,  being  thus  estab- 
lished, was  held  ground  for  a  new  trial.-^  Or,  possibly,  to 
settle  doubts  which  may  have  arisen  on  the  subject  in  con- 
sequence of  other  decisions  of  that  court. ^  In  so  holding, 
the  court  went  further,  it  is  believed,  than  any  other  court 
has  gone.  This  statute  was  at  once  recognized  as  an  inno- 
vation upon  the  common  law  rule,  and  was  strictly  con- 
strued. It  was  held  that  jurors  could  not  be  compelled  to 
disclose  under  oath  how  or  in  what  manner  they  had  made 
up  their  verdict.  The  affidavit  must  be  voluntary.^  It  was 
also  held  that  the  oath  of  a  juror  would  not  be  received  to 
show  that  he  had  not  agreed  upon  the  verdict  wdiich  was 
rendered,  but  that  it  was  rendered  without  his  consent.^ 
But  such  an  affidavit  was  admissible  to  show  misconduct  of 
the  jury  in  arriving  at  their  verdict  —  as  in  making  up  a 
quotient  verdict.*'     Later  it  was   held   that   such   affidavits 

i  Iowa  Code  of  1851.  §  1810. 

2  Packard  v.  United  States,  1  G.  Greene,  225. 

^  It  was  held  that  such  affidavits  were  not  admissible  to  explain  their 
verdict  in  reference  to  what  items  of  account  had  been  received 
and  what  rejected.  Lloyd  v.  McClurc,  2  G.  Greene,  139.  In  a  later 
■ease,  it  was  held  that  such  affidavits  would  not  be  received  to  show 
misconduct  uf  the  jury,  a-j  that  they  had  procured  and  read  a  deposition 
•which  had  not  been  offered  in  evidence.  Abel  v.  Kennedy,  3  G.  Greene, 
47. 

*  Forshee  v.  Abrams,  2  Iowa,  571 ;  Grady  v.  State,  4  Iowa,  4G1 ;  Crum- 
ley V.  Adkins,  12  Iowa,  363. 

5  Cook  V.  Sypher,  3  Iowa,  484;  State  v.  Douglass,  7  Iowa,  413. 

"  Manix  v.  Maloney,  7  Iowa,  81;  Rubb  v.  McDonald,  7  Iowa,  90; 
Schanler  v.  Porter,  7  Iowa,  482.  And  so  after  the  repeal  of  this  statute. 
Barton  v.  Holmes,  16  Iowa,  252;  Hendrickson  v.  Kuigsbury,  21  Iowa, 
379. 


554  NEW  TIIIALS  FOR  MISCONDUCT  OF  JURIES.     [CH.  XXI. 

were  admissible  to  show  the  basis  upon  which  the  verdict 
was  found,  but  not  to  impeach  the  verdict.^  This  decision 
was  not  reported  in  full ;  and  what  the  court  meant  by  it  is 
not  very  clear.  In  the  next  case  which  we  meet,  it  was 
held  that  such  affidavits  were  admissible  to  show  misconduct 
on  the  part  of  the  jury  —  as  that  a  deposition  not  read  in 
evidence  had  been  taken  by  them  to  their  room  —  though  it 
was  again  said  that  they  would  not  l)e  received  to  impeach 
their  verdict.^  But  in  another  case  in  the  same  volume  the 
court  refused  to  receive  affidavits  to  show  that  the  jurors' 
notes  of  the  testimony  were  taken  by  one  of  the  attorneys- 
upon  the  trial. ^ 

(2.)  Subsequent  to  the  Revision  of  1860. —  Taking  up 
the  line  of  decisions  in  that  State  after  the  provision  of  the 
Code  of  1851,  alread}^  noticed,  went  out  of  existence,  we 
find  it  held  that  such  affidavits  are  not  admissible  to  show 
that  the  jurors  misunderstood  the  instructions  of  the  court.* 
And  where  such  affidavits  were  introduced  to  the  effect  that 
the  jurors  misunderstood  the  testimony,  it  was  doubted 
whether  they  could  })roperly  be  received,  but  it  was  held 
that  it  must  at  least,  appear  that  they  had  reasonahJe 
ground  for  misunderstanding  it}  At  length  we  come 
to  a  decision  where  the  whole  subject  was  reconsidered^ 
and  it  was  resolved  that  affidavits  of  jurors  may  be  received, 
for  the  purpose  of  avoiding  a  verdict,  to  show  any  matter 
occurring  during  the  trial,  or  in  the  jury-room,  which  does 
not  essentially  inhere  in  the  verdict  itself, — as  that  a  juror 
was  improperly  approached  by  a  part}",  his  agent  or  attor- 
ney;  that  witnesses  or  others  conversed  as  to  the  facts  or 
the  merits  of  the  case  out  of  court  and  in  the  presence  of 
the  jurors  ;  that  the  verdict  was  determined  l)y  aggregation 

1  Butt  V.  Tiitliill.  10  Iowa,  585. 

2  Stewart  v.  Builinojton  etc.  K.  Co ;  11  Iowa,  G2. 
a  State  v.  Accola,  11  Iowa,  24G. 

*  Davenport  v.  Ciinimings,  15  Iowa.  219  (overruling  Packard  v.  United 
States,  1  G.  Greene,  225). 

»  Jack  V.  Xaber,  15  Iowa,  450;  Moffit  v.  Rogers,  15  Iowa.  153.  The 
court  does  not  explain  how  a  man  can  have  a  reasonable  ground  for  mis- 
undcr.standins:  a  thing. 


§   453.]  THE  IOWA  RULE  FOLLOWED  IN  KANSAS.  555 

and  average,  or  by  lot  or  game  of  chance,  or  by  other  arti- 
fice, or  in  any  other  improper  manner.  But  it  was  held 
that  such  affidavits  may  not  be  received  to  show  any  matter 
which  does  not  essentially  inhere  in  the  verdict, —  as  that  the 
afliant  juror  did  not  assent  to  it ;  that  he  misunderstood  the 
instructions  of  the  court,  the  statements  of  the  witnesses,  or 
the  pleadings  in  the  case  ;  that  he  was  unduly  influenced  by 
the  statements  of  his  fellow  jurors,  or  mistaken  in  his  cal- 
culation or  judgment,  or  other  matters  resting  alone  in 
the  jurors  breast.^  This  decision  has  been  followed  and 
applied  in  subsequent  cases.  It  is  accordingly  held,  as  be- 
fore the  repeal  of  the  statute  of  1851,  that  such  afiidavits 
will  be  received  to  show  that  the  verdict  which  was  returned 
was  a  quotient  verdict.^  But  such  afiidavits  were  rejected 
when  they  set  forth  the  basis  or  calculation  upon  which  the 
jurors  arrived  at  their  verdict  f  when  they  showed  that  a 
juror  had  read  a  part  of  the  answer  and  an  exhibit  thereto 
which  had  been  held  bad  on  demurrer,  and  that  he  was 
thereby  influenced  to  consent  to  the  verdict ;  *  or  that  the 
verdict  was  not  assented  to  by  all  the  jurors  ;  ^  or  that  the 
affiant  juror  was  unduly  influenced  by  his  fellows.*^  It  may 
be  doubted  whether  this  rule  is  capable  of  being  applied 
with  uniformity  or  certainty. 

§  453.  The  Iowa  Rule  followed  in  Kansas. —  The  rule 
upon  which  the  Supreme  Court  of  Iowa  thus  settled  ^  —  if, 
indeed,  it  possesses  sufficient  certainty  to  be  called  a  rule  — 

1  Wright  V.  Illinois  etc.  Tel.  Co.,  20  Iowa,  195. 

2  Wright  V.  Illinois  etc.  Tel.  Co.,  20  Iowa,  195;  Hendrickson  v.  Kings- 
bury, 21  Iowa,  379;  Fuller  v.  Chicago  etc.  E.  Co.,  31  Iowa,  211. 

^  Hall  V.  Robison.  25  Iowa,  91. 

^  Cowles  V.  Chicago  etc.  R.  Co.,  32  Iowa,  515.  But  they  were  received 
to  show  that  the  jury  took  with  them  to  their  room  a  deposition  which 
had  been  suppressed,  and  that  a  portion  of  it  was  read  by  one  of  the 
jurors,  though,  on  account  of  the  showing  made  by  exculpatery  affida- 
vits, the  court  refused  to  grant  a  new  trial.  Morris  v.  Howe,  36  Iowa, 
490. 

«  Garretty  v.  Brazell,  34  Iowa,  100. 

«  Bingham  v.  Foster,  37  Iowa,  339;  Dunlavey  v.  Watson,  38  Iowa,  398. 

■  In  Wright  v.  Illinois  etc.  Tel.  Co.,  20  Iowa,  195.  See  the  preceding 
section. 


551)  NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES.     [CII.  XXI. 

has  been  adopted  in  Kansas  in  express  terms.  It  is  accord- 
ingly held  in  that  State,  that  such  affidavits  are  not  admis- 
sible to  show  that  the  jurors  agreed  to  tind  the  prisoner 
guilty,  through  fear  that  mob  violence  Avould  result  to  him 
in  case  of  an  acquittal.^  But  they  will  be  received  to  show 
that  one  of  the  jurors  was  intoxicated  during  their  delibera- 
tions,'^ or  that  the  verdict  was  ol)tained  by  aggregation  and 
division,  the  jurors  agreeing  in  advance  to  be  bound  by  the 
result  of  that  method  of  arriving  at  their  verdict.^ 

§  454.  Statutory  Rule  in  California  and  Arkansas  in 
Case  of  Chance  Verdicts. —  By  the  Code  of  Civil  Pro- 
cedure in  California  it  is  provided  that,  "  Whenever  any 
one  or  more  of  the  jurors  have  been  induced  to  assent  to 
any  general  or  special  verdict,  or  to  a  finding  on  any  ques- 
tion submitted  to  them  by  the  court,  by  a  resort  to  the  de- 
termination of  chance,  such  misconduct  may  be  proved  by 
the  affidavit  of  any  one  of  the  jurors."*  As  this  statute 
affected  the  remedy  only,  it  was  held  to  apply  to  a  motion 
for  a  new  trial  in  a  case  where  the  judgment  was  rendered 
prior  to  its  passage.^  Construing  this  statute,  it  is  held 
that  where  the  jurors  agree  to  return  what  is  known  as  a 
quotient  verdict,  this  is  not  a  verdict  determined  by  chance.' 
This  statute  is  held  to  be  in  derogation  of  the  common  law  ; 
it  is  hence  strictly  construed  ;  and  in  cases  not  within  its 
terms  the  affidavits  of  jurors  are  not  received  in  that  State. '^ 
80,  in  Arkansas,  a  juror  may  be  examined,  upon  a  motion 
for  a  new  trial,  to  show  that  the  verdict  was  l)y  lot;  but 
not  otherwise.^ 

§  455.  Statutory  Rule  in  Texas  in  Criminal  Cases. — 
The  Texas  Code  of  Criminal  Procedure  contains  the  foUow- 

1  State  V.  Home,  9  Kan.  119. 

2  Perry  V.  Bailey,  12  Kan.  539. 

3  Johnson  v.  Husband,  22  Kan.  277. 
^  Cal.  Code  of  Civil  Proc,  §  657. 

5  Douner  v.  Palmer,  23  Cal.  40. 

6  Turner  v.  Tuolunme  Water  Co.,  25  Cal.  397.     But  see  cihtc,  §  410. 

^  Ibid.\  People  v.  Hughes,  29  Cal.  257;  Polhenius  v.  Heiman,  50  Cal. 
438. 
»Ai-k.  Dig.  Stat  1874,  §  1971;  Fain  v.  Goodwin,  35  Ark.  109. 


§   456.]         MISCONDUCT  IN  PRESENCE  OF  THE  COURT.  557 

iiig  provision:  "New  trials  in  cases  of  felony  shall  bo 
granted  for  the  following  causes,  and  no  other:  *  *  * 
8.  Where,  from  the  misconduct  of  the  jury,  the  court  is  of 
opinion  that  the  defendant  has  not  received  a  fair  and  im- 
partial trial ;  and  it  shall  be  competent  to  prove  such  mis- 
conduct by  the  voluntary  affidavit  of  a  juror ;  and  a  verdict 
may  in  like  manner,  in  such  cases,  be  sustained  by  such  affida- 
vit." ^  Before  this  Code,  affidavits  of  jurors  were  not  ad- 
mitted to  show  their  own  misconduct,  or  otherwise  to 
impeach  their  verdict ;  ^  though  the  court  was  disposed  to 
concede  that  such  affidavits  might  possibly  be  received  un- 
der peculiar  circumstances,  or  in  extreme  cases. ^  Under 
the  Code,  it  has  been  held  that  it  is  competent  to  show  by 
the  affidavit  of  a  juror  that  he  had  founded  his  verdict 
upon  statements  made  by  another  juror  in  the  jury-room,, 
prejudicial  to  the  defendant,  and  that,  upon  such  a  show- 
ing, a  new  trial  ought  to  be  granted  ;  *  or  that  the  verdict 
which  was  returned  was  a  quotient  verdict,  the  jurors  agree- 
ing in  advance  to  be  bound  by  the  result.^ 

§  456,  Misconduct  in  tlie  Presence  of  the  Court. —  If  a 
juror  misconducts  himself  in  the  presence  of  the  court,  the 
fact  may  be  brought  to  the  attention  of  the  court  by  affida- 
vit, as  a  ground  for  a  new  trial ;  '  and  it  seems  that  the  affi- 
davit of  a  juror  is  admissible  for  this  jDurpose.^  Courts  are,, 
however,  reluctant  to  consider  such  matters  as  ground  for  a 
new  trial,  and  for  the  reason  that  the  misconduct  ought  to 

1  Texas  Code  of  Crim.  Proc.  1879,  Art.  777.  subsec.  8. 

2  Campbell  v.  Skidmore,  1  Tex.  475;  Mason  v.  Kussell,  1  Tex.  721; 
Kilgore  v.  Jordan,  17  Tex.  341;  Little  v.  Birdwell,  21  Tex.  597;  Johnson 
V.  iState,  27  Tex.  758. 

3  Little  V.  Birdwell,  21  Tex.  597;  Johnson  v.  State,  27  Tex.  758;  Bren- 
nan  v.  State,  33  Tex.  266. 

*  Anschicks  v.  State,  6  Tex.  App.  524. 

5  Hunter  v.  State,  8  Tex.  App.  75.  In  this  case  it  is  .<aid  bj'  Winkler, 
J:  "  The  practice  of  permitting  jurors  to  impeach  Iheir verdict  by  expos- 
ing their  own  misconduct  is  to  be  reprehended  rather  than  encouraged; 
but  still  the  law  seems  to  provide  that  their  misconduct  may  be  exposed, 
by  tlieir  own  affidavits  when  voluntarily  made." 

6  Cogswell  v.  State.  49  Ga.  103. 

^  Roberts  t..  Hughes,  2  Mees.  &  W.  398. 


f)08  NEW  TRIALS  FOR  MISCONDUCT  OF  JURIES.     [CH.   XXI. 

have  been  brought  to  the  attention  of  the  court  at  the  tinie.^ 
It  has  even  been  said  that  the  fact  that  a  juror  fell  asleej) 
for  a  time  during  the  argument  of  the  defendant's  counsel 
in  a  criminal  case,  does  not  furnish  sufficient  ground  for  a 
new  trial ;  ^  or  that  in  a  civil  trial,  a  juror  was  during  a  por- 
tion of  the  trial  to  all  appearances  asleep.^  And  in  no  case 
will  a  new  trial  1)e  granted  upon  the  ground  that  the  juror 
misbehaved  during  the  trial,  unless  it  be  made  to  a])pear 
affirmatively  that  the  party  complaining  and  his  counsel  did 
not  know  the  fact  before  the  jury  retired  to  consider  of 
their  verdict.* 

'  Ante,  §  428. 

2  McClary  v.  State,  75  Ind.  260. 
*  Pelham  v.  Page,  6  Ark.  535,  538. 

<  Cogswell  V.  State.  49  Ga.  103;  Baxter  v.  People,  S  111.  368;  People  v. 
Wilson,  8  Abb.  Pr.  137;  s.  c,  4  Park.  Cr.  K.  619. 


PART  11. 

OF  THE  GRAND  JURY. 

CHAPTER  XXII. 

OF  THE  ORIGIN  OF  THE  GRAND  JURY. 

SECTION. 

463.  Early  History  of  the  Accusing  Body. 

464.  It  consisted  of  Twelve  Men. 

465.  Oatli  of  the  Twelve. 

466.  Charge  of  the  Justices. 

467.  An  Accusing  Body  for  each  Hundred. 

468.  Kise  of  the  Grand  Jury. 

§  463.  Early  History  of  the  Accusing  Body. —  An  ac- 
cusing body,  but  not  a  grand  jury  so  called,  has  certainly 
been  known  to  the  law  from  the  time  of  Hen.  III.  How 
much  earlier  it  existed  may  be  a  matter  of  conjecture. 
Bracton's  account  as  stated  by  Mr.  Reeves  in  his  authorita- 
tive History  of  the  English  Law,^  is  quite  intelligible.  A 
general  summons  preceded  the  coming  of  the  justices  itin- 
erant into  a  county,  commanding  all  persons  to  attend  at  a 
certain  time  and  place.  The  people  having  duly  assemljled, 
the  justices  proceeded  to  read  their  writs  or  commissions 
showing  their  authority,  after  which  one  of  their  number 
was  accustomed  to  address  the  gathering  with  less  formal- 
ity, explaining  the  cause  of  their  coming  and  the  commands 

iBook  n.,  p.  3. 


560  ORIGIN  OF  THE  GRAND  JURY.  [CTl.  XXII. 

of  the  King,  that,  by  virtue  of  their  uUcgiancc,  thej  .should 
lend  their  advice  and  assistance  to  the  repression  of  crime. 

After  conferring  in  private  with  a  small  numl)er,  four  or 
six  of  the  leading  men  of  the  county,  and  enjoining  more 
particularly  the  duty  incumbent  upon  them  and  all  other 
subjects  of  the  king  not  to  harbor  any  outlaws,  murderers, 
robbers  or  burglars,  and  having  taken  their  oaths  tiiat  they 
would  do  as  commanded,  the  justices  again  appeared  before 
the  people  and  the  process  of  procuring  an  accusing  body 
l)egan. 

§  464.  It  consisted  of  TAvelve  Men. —  The  first  step  was 
to  call  over  the  bailiffs  of  the  hundreds,  each  of  whom 
made  oath  that  he  would  choose  out  of  his  hundred  four 
knights,  who  were  to  come  immediately  before  the  justices,, 
and  make  oath  that  they  would  elect  twelve^  other  knights, 
or,  if  the  knights  could  not  be  had,  twelve  liberos  et  legales^ 
homines,'^  who  were  no  appellors,  nor  appealed,  nor  sus- 
pected of  breach  of  the  peace,  or  the  death  of  a  man,  or 
other  offenses,  and  such  as  were  well  qualitied  to  dispatch 
the  King's  business  upon  this  occasion.  The  names  of  the 
twelve  were  immediately  to  be  inserted  in  a  schedule,  which 
was  delivered  to  the  justices. 

§  465.  Oatli  of  the  Twelve. —  As  the  twelve  of  each 
hundred  appeared,  one  of  them  took  the  following  oath : 
"  Hear  this,  ye  justices,  that  I  will  speak  the  truth  of  that 
which  you  shall  command  me  on  the  part  of  our  lord  the 
king;  nor  will  I,  for  anything,  omit  so  to  do,  according  to 
my  ability:    so  help    me    God,  and    these    holy  gospels." 


1  Tliis  number  was  confirmed  also  by  the  statute  of  13  Etlw.  I,  eh.  13, 
enacting  thai  sheriffs  in  their  '•  tourns  "  should  cause  their  •'  inquests  of 
malefactors  to  be  taken  by  lawful  men,  and  bj"  tnelve  at  least.  whicJi 
shall  put  their  seals  to  such  inquisitions;  and  those  that  shall  be  found 
culpable  by  such  inquests  they  shall  take  and  imprison  as  they  have  used 
aforetimes  to  do."'    2  Co.  Inst.  387;  P'orsyth,  Trial  by  Jury.  216. 

-  Such  persons  must  be  liege  subjects  of  the  king,  and  neither  aliens, 
noi'  persons  outlawed  even  in  a  civil  action,  attainted  of  any  treason  or 
felouy.  or  convicted  of  any  species  of  crimen  falsi,  as  consi)irac}'  or  per- 
jury, which  may  render  them  infamous.     1  Chitty  C.  L.  307. 


§   466.]  ACCUSING  BODY  FOR  EACH  HUNDRED.  561 

After  this  each  one  of  the  jury  swore  that  he  also  would 
observe  the  oath  just  taken. ^ 

§  466.  Charge  of  the  Jxistices. —  The  several  juries 
being  thus  organized,  the  justices  read  over  to  them  what 
were  to  be  the  subjects  of  their  inquiry.  When  these  were 
gone  through,  the  justices  informed  them  that  they  were  to 
answer  in  their  verdict  separately  and  distinctly  upon  every 
article  assigned,  and  were  to  have  their  answer  there  at  a 
certain  day.  Besides  this,  they  were  privately  admonished 
that  if  any  knew  of  anv  suspected  persons  in  his  hundred, 
he  should  instantly  take  them  if  they  could  be  found ;  if 
not,  their  names  were  to  be  privately  given  in  to  the  jus- 
tices, that  they  might  not  have  notice  to  escape  ;  whereupon 
the  sheriff  was  commanded  to  take  them  and  bring  them 
before  the  justices. 

§  467.  All  Accusmg  Body  for  each  Hundred.  —  Thus 
we  see  that  each  hundred  of  the  county  had  its  own  ac- 
cusing body.  No  witnesses  were  examined.  The  present- 
ments were  made  upon  the  knowledge  of  the  jurors  in 
respect  of  any  such  violations  of  law  as  were  the  subjects 
of  their  inquiry.  The  twelve  were  sworn  to  speak  the  truth; 
and  since   they    came   from  the   vicinage   where  the    facts 

1  "In  consequence  of  the  oath  which  they  took,"  says  Mr.  Forsyth, 
"they  were  called  the.  jurata  patriae,  or  often  simply  jwcrttores,  and  for  a 
long  time  seem  to  have  united  the  functions  of  a  grand  jury  to  accuse, 
and  a  petit  jury  to  try  the  accused."  Forsyth,  Trial  by  Jur3%  198. 
Since  juries  in  these  early  times  founded  their  verdicts  upon  their  own 
knowledge  of  the  case,  no  witnesses  being  examined,  on  first  consider- 
ation it  would  seem  to  be  idle  that  the  same  body  which  accused  should 
try  the  culprit.  But  this  apparent  absurdity  clears  away  when  it  is  re- 
collected that  the  consc-quenc'!  of  a  criminal  charge  in  the  early  time 
was  an  appeal  to  compurgation  or  the  ordeal.  Tlierefore  Mr.  Forsyth 
observes:  "  I  do  not  think  it  is  possible  to  determine  the  exact  period 
when  the  change  took  phice,  whereby  a  person  accused  of  a  crime  by  the 
inquest  of  tiie  hundred  was  entitled  to  have  the  fact  tried  by  another  and 
different  jitmffj.  Most  probably  there  was  no  sudden  alteration  in  the 
system,  but  in  proportion  as  compurgation  and  the  ordeal  fell  into  dis- 
repute, the  necessity  would  be  felt  of  substituting  some  other  mode  of 
determining  whether  the  accusation  of  the  jurors  representing  the 
2)atria  was  well  founded  or  not."    Id.  199. 

(3G) 


562  ORIGIN  OF  THE  GKAND  JURY.  [CH.   XXII. 

arose,  none,  it  was  tliought,  were  better  ealculated  to  do  this 
than  themselves. 

§  4l>8.  Kise  of  the  Grand  Jury. —  How  h)iig  inquests 
were  taken  as  indieated  in  the  foregoing  cannot  be  definitely 
stated.  The  earliest  instance  of  an  innovation,  looking  to 
the  establishment  of  a  grand  jury  taken  from  the  county 
at  large,  occurs  in  the  42nd  year  of  Edw.  HI.,  where,  at  a 
commission  of  oyer  and  terminer,  besides  the  return  of  an 
inquest  for  every  hundred  by  the  bailiff,  the  sheriff  likewise 
returned  a  panel  of  knights  which,  says  the  old  record, 
were  le  gvaunde  inquest}  The  speculations  of  Mr.  Reeves 
upon  the  functions  of  the  inquests  after  the  appearance  of 
this  new  bod}^  are  substantially  adopted  by  a  later  and  emi- 
nent authority,""^  and  are  given  at  length,  showing  the  final 
and  complete  establishment  of  the  institution  of  the  grand 
Jury.  "  The  inquests  for  the  hundreds  still  made  their  pre- 
sentments, as  in  Bracton's  time,  and  if  they  presented,  they 
likewise,  no  doubt,  found  indictments  ;  but  these  were  con- 
fined to  their  different  hundreds.  The  grand  inquest  probably 
was  to  inquire  at  large  for  every  hundred  in  the  county  ; 
and  the  hundredors  became  jurors  in  inquests  de  bono  et 
malo  or  ex  officio,  when  called  upon  ;  and  if  a  commission 
of  assize  and  nisi  priiis  were  sitting,  they  filled  the  place 
of  jurors  occasionally  in  assizes,  and  of  juries  in  civil  causes. 
When  the  practice  began  of  returning  a  grand  inquest  to 
inquire  for  the  whole  body  of  the  county,  the  business  of 
the  hundred-inquest  must  naturally  decline,  till  at  length 
the  whole  burthen  of  presenting  and  finding  indictments 
devolved  upon  the  grand  inquest,  and  the  hundredors  con- 
tinued to  be  summoned  merely  for  trying  issues."  ^  Thus, 
it  will  be  seen,  the  term  grand  jury  was  not  originally  used, 
as  in  later  times,  to  distinguish  the  accusing  body  from  the 
trial  jury,  but  it  denoted  rather  a  jury  taken  from  the  county 
at  large,  as  distinguished  from  a   jury  of  the  hundred. 

J  3  Reeves,  133. 

2  Forsyth,  Trial  by  Jury,  218. 

'3  Reeves,  133. 


§   469.]  THE  ESTABLISHED  GRAND  JURY.  563 


CHAPTER  XXIII. 


OF    THE  ESTABLISHED    GRAND    JURY    AND  ITS    FUNCTIONS. 

SECTION. 

469.  Constitutional  Right  to  Accusation  by,  in  England. 

470.  Constitutional  Provisions  as  to,  in  the  United  States. 

471.  The  Gi'and  Jury  in  what  cases  dispensed  with. 

472.  Abolition  of  the  Grand  Jury. 

473.  Functions  of  the  Grand  Jury. 

474.  Duties  of  Individual  Grand  .Jurors  in  Connecticut  and  Indiana. 

475.  The  Institution  eulogized. 

476.  This  Eulogy  criticised. 

§  469.  Constitutional  Right  to  Accusation  by,  in  Eng- 
land.—  The  institution  shadowed  forth  in  the  previous 
chapter  became  early  fixed  in  the  common  law,  and  contin- 
ues to-day,  though  held  in  varying  degrees  of  estimation. 
The  constitutional  right  of  an  Englishman  to  demand  that 
he  shall  not  be  put  to  trial  upon  a  criminal  charge,  unless 
presented  by  a  grand  jury  regularly  returned  to  inquire  into 
offences,  has  undoubtedly  saved  from  iniquitous  prosecu- 
tion innocent  persons,  who  otherwise  would  have  fallen  vic- 
tims to  the  subserviency  of  a  crown  officer  in  proceedings 
by  information.  The  right  is  here  stated  in  general  terms. 
There  can  be  no  doubt  that  the  indictment  is  "  the  most 
constitutional,  regular,  and  safe,  as  well  by  far  the  most 
usual  mode  of  proceeding  upon  criminal  charges."  ^  The 
exceptions  to  the  rule  would  require  an  elaborate  discussion, 
foreign  to  the  scope  of  this  book,  and  therefore  this  will 
not  be  attempted.      However,  the  written  constitutions  of 

1  1  Chittv  Cr.  L.  162. 


564  THE  ESTABLISHED  GKAXD  JUKY.  [CII.  XXIII. 

some  of  the  States  are  quite  explicit  upon  this  point.  A 
sketch  of  the  })rovisions  relating  to  the  grand  jury  will 
follow. 

§  470.  Constitutional  Provisions  as  to,  in  tlie  United 
States. —  The  tiftli  amendment  to  the  Constitution  of  the 
United  States  provides:  "No  person  shall  beheld  to  an- 
swer for  a  capital,  or  otherwise  infamous  crime,  unless  on  a 
presentment  or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia,  when 
in  actual  service  in  time  of  war  or  public  danger."  And  so 
the  constitutions  of  certain  of  the  States  similarly  provide.^ 
The  constitutions  of  some  of  the  States  more  specifically 
prescribe  what  offences  must  be  prosecuted  by  way  of  in- 
dictment. These,  with  certain  exceptions  noted,  are  enu- 
merated as  "any  crime,  the  punishment  of  which  may  be 
death  or  imprisonment  for  life  ;  "  '^  '•  felony  :  "  ^  "  treason, 
felony,  or  other  crime,  not  cognizable  by  a  justice  ;  "  *  any 
higher  criminal  offence  than  one  punishable  by  a  fine  of  one 
hundred  dollars  or  imprisonment  for  thirty  days  ;  ^  all  crim- 
inal offences,  except  those  punishable  by  fine  or  imprison- 
ment otherwise  than  in  In  the  penitentiary.''  In  other 
States  the  right  to  demand  an  investigation  and  indictment 
by  a  grand  jury  is  conceded  generally  upon  "  a  criminal 
charge,"  ^  to  the  exclusion  of  proceedings  by  information.* 


1  See  Const.  Me.  1820,  Art.  I.,  §7;  Const.  Nev.  1864,  Art.  1.,  §  8;  Const. 
X.  Y.  1846,  Art.  I.,  §6;  Const.  Ohio,  1851,  Art.  I.,  §  10;  Const.  R.  I. 
1842,  Art.  If.,  §  7;  Const.  Fla.  1S68,  Art.  L,  §  9. 

2  Const.  Conn.  1818,  Art.  t.,  §  0.  See  also  G.  S.  Conn.,  1875,  p.  532, 
§  6;  id.,  536,  §  3. 

'Const.  Mo.  1875, Art.  II.,  §12;  Const.  Colo.  1876,  Art.  11.,  §  8. 

*  Const.  W.  Va.  1872,  Art.  II,  §  4. 

«  Const.  Iowa  1857,  Art.  I.,  §  11 ;  Const.  S.  C.  1868,  Art.  I.,  §  19. 

«  Const.  Neb.  1875,  Art.  I.,  §  10. 

^  Const.  Ark.  1874,  Art.  I.,  §  8;  Const.  111.  1870,  Art.  II..  §  8;  Const. 
Minn.  1857,  Art.  I.,  §  7;  Const.  N.  J.  1877,  Art.  I.,  §  9;  Amend.  Const. 
N.  C.  1876,  Art.  I.,  §12;  Const.  Tex.  1876,  Art.  I.,  §10;  Const.  Wis. 
1848,  Art.  I.,  §8. 

8  Const.  Ala.  1875,  Art.  I.,  §  9;  Const.  Del.  1831,  Art.  I.,  §  8;  Const. 
Ky.  1850,  Art.  Xll[.,  §13;  Const.  Miss.  1868,  Art.  I.,  §31;  Const.  Penn. 
1873,  Art.  I.,  §10. 


§   473.  ]  FUNCTIONS  OF  THE  GRAND  JURY.  §65 

§    471.      The    Grand    Jury     in    what    Cases   dispensed 

with. —  The  exceptions  to  the  provisions  noticed  in  the  pre- 
vious section  generallj^  include  certain  minor  offences  which 
are  prosecuted  before  inferior  trii)unals.  These  are  stated 
to  be  "  cases  cognizable  by  justicrs  of  the  peace  ;  "  ^  "  cases 
of  petit  larceny  ;  "  ^  "  cases  of  petit  larceny  and  other  in- 
ferior offences  ;  "  ^  "  cases  of  petit  larceny,  assault,  assault 
and  battery,  affray,  unlawful  assemblies,  vagrancy  and 
other  misdemeanors  ;  "  **  "all  offences  less  than  felony,  and 
in  which  the  punishment  does  not  exceed  a  fine  of  one  hun- 
dred dollars,  or  imprisonment  for  thirty  days  ;  "  ^  "  cases 
in  which  the  punishment  is  by  fine,  or  imprisonment  other- 
wise than  in  the  penitentiary."  " 

§  472.  Abolition  of  tlie  Grand  Jury. —  Sweeping  changes 
are  proposed  by  the  constitutions  of  several  of  the  States. 
Thus,  in  Illinois,  "  the  grand  jury  may  be  abolished  by  law 
in  all  cases."  ^  In  Colorado  and  Indiana,  the  General  As- 
sembly may  regulate,  modifj^  or  abolish  the  grand  jury  sys- 
tem.^ In  Nebraska,  "the  legislature  may,  by  law,  provide 
for  holding  persons  to  answer  for  criminal  offences  on  in- 
formation of  a  public  prosecutor  ;  and  may,  by  law,  abolish, 
limit,  change,  amend,  or  otherwise  regulate  the  grand  jury 
system."^  In  California  and  Louisiana,  prosecutions  may 
be  by  indictiuent  or  information.^*^ 

§  473.  Functions  of  the  Grand  Jury. —  While  in  Eng- 
land, it  is  believed,  the  duties  of  the  grand  jury  are  limited 

1  Const.  Minn.  1S57,  Art.  I.,  §  7;  Const.  X.  J.  1844,  Art.  I.,  §  9;  Const. 
W.  Va.  1872,  Art.  II.,  §  4;  Const.  Wis.  1848,  Art.  I.,  §  8. 
«  Const.  Fla.  1866,  Art.  I.,  §  9. 

3  Const.  Ohio,  1851,  Art.  I.,  §  10. 

4  Const.  Ala.  1875,  Art.  I.,  §  9;  Const.  Miss.  1868,  Art.  I,  §  31. 

s  Const.  Iowa,  1857.  Art.  I.,  §  11 ;  Const.  S.  C.  1868,  Art.  I.,  §  19. 

6  Const.  Tex.  1876,  Art.  I.,  §  10;  Const.  Neb.  1875,  Art.  I.,  §  10;  Const. 
111.  1870,  Art.  II.,  §  8. 

7  Const.  111.  1870,  Art.  II.,  §  8. 

«  Const.  Colo.  1876,  Art.  II.,  §  23 ;  Const.  Ind.  1851,  Art.  VII.  §  17. 

9  Const.  Neb.  1875,  Art.  I.,  §10. 

^0 Const.  Cal.  1879,  Art.  I.,  §  8;  Const.  La.  1868,  Tit.  1,  Art.  VI.  In 
some  States  no  grand  jury  is  drawn,  unless  the  judge  makes  a  special 
order  therefor.  See  Comp.  L.  Mieh.  1871,  §7943;  2  Stats.  Ind.  1876, 
p.  418,  note,  §  1. 


566  THE  ESTABLISHED  GRAND  JURY.  [CH.  XXllI, 

to  inquiries  into  offenses  against  the  law,  in  the  several 
States  their  sphere  of  operations  has  been  greatly  enhirged. 
The  statutes,  it  is  true,  quite  generally  declare  it  to  be  the 
duty  of  this  body  to  inquire  into  all  indictable  offenses, 
committed  or  triable  in  the  county,'  as  well  as  the  case  of 
every  person  imprisoned  in  the  county  jail  and  not  indicted.^ 
Besides  these  ordinary  duties,  certain  others  of  a  special 
character  are  deputed  to  them.  This  body  seems  to  have 
been  regarded  by  legislatures  as  a  convenient  substitute  for 
boards  of  commissioners  in  the  performance  of  necessary 
investigations.  Thus,  it  is  the  duty  of  the  grand  jury  to 
inspect  the  county  jail  for  the  purpose  of  examining  its 
security,  sanitary  condition  and  discipline;^  to  inquire 
into  the  wilful  and  corrui)t  misconduct  in  office  of  public 
officers    of    every  description    within    the    county.'*      That 

1  Code  Ala.  187G,  §  4767;  Conip.  L.  Ariz.  1877,  §  596;  Miller's  R.  C. 
Iowa,  1880,  §  4272;  Bullitt's  Ky.  Cr.  Code,  §  102;  2  Stat,  at  Large,  Miniu 
1873  p.  1036,  §  102;  Xew  York  Code  Crim.  Proe.  1S81,  §  252;  Gen.  Laws 
New^  Mexico,  1880.  p.  369,  §  1 ;  R.  S.  Ohio,  1880,  §  7194;  Stat.  Tena.  1871 , 
§  5078;  Gen.  Laws  Greg.  1872,  p.  346,  §  43;  Laws  Utah,  1878,  §  138;  R.  S. 
W.  Va.  1879,  eh.  53,  §  7. 

•-i  Comp.  L.  Ariz.  1877,  §  G04;  Penal  Code  Cal.  §  923;  Ark.  Dig.  Stat. 
1874,  §  1754;  Miller's  R.  C.  Iowa  1880,  §  4278;  Bullitt's  Ky.  Cr.  Code,. 
§  102;  2  Stat,  at  Large,  Minn.  1873,  p.  1036,  §  112;  Comp.  L.  Nev.  1873,. 
§  1835;  Gen.  Laws  New  Mexico,  1880,  p.  370,  §  10;  Gen.  Laws  Greg.  1872,. 
p.  347,  §  54;  Xew  York  Code  Crim.  Proc.  1881,  §  260. 

3  Code  Ala.  1876,  §  4767,  4768;  Comp.  L.  Ariz.  1877,  §  604;  Cal.  Penal 
Code,  §  923;  Ark.  Dig.  Stat.  1874,  §§  17.54,  3572;  Code  Ga.  1873,  §  504; 
R.  S.  111.  1880,  p.  639,  §  26,  et  seq.;  Laws  Ind.  1879,  p.  249,  §  8;  Miller's 
R.  0.  Iowa,  1880,  §  4278;  Comp.  L.  Kan.  1879,  §  2939;  Bullitt's  Ky.  Cr. 
Code,  §  102;  R.  S.  La.  1876,  §  2139;  R.  C.  Md.  1878,  p.  563,  §  21;  2  Stat, 
at  Large,  Minn.  1873,  p.  1036,  §  112;  R.  C.  Miss.  1880.  §  1673;  Comp.  L. 
Neb.  1881,  p.  327,  §  9;  id.,  p.  727,  §  409;  Comp.  L.  Nev.  1873,  §  1835; 
Gen.  Laws  New  Mexico,  1880,  p.  370,  §  10;  New.  York  Code  Crim. 
Proc.  1881,  §  260;  R.  S.  Ohio,  1880,  §  7209;  Stat.  Tenn.  1871,  §  5079; 
Gen.  Laws  Oreg.  1872,  p.  347,  §  52;  Laws  Utah,  1878,  §  138;  G.  S.  Vt. 
1862,  p.  702,  §  3;  1  Stat.  Ind.  1876,  p.  601,  §  2. 

*  Comp.  L.  Ariz.  1877,  §  604;  Cal.  Penal  Code,  §  7.58;  Ark.  Dig.  Stat. 
1874,  §  1754:  Miller's  R.  C.  Iowa,  1880,  §  4278;  Bullitt's  Ky.  Cr.  Code,  § 
102;  2  Stat,  at  Large,  Minn.  1873,  p.  1030.  §  112;  Comp.  L.  Nev.  1873, 
§1835;  Gen.  Laws  New  Mexico,  1880,  p.  370,  §  10;  New  York  Code 
Crim.  Proc.  1881,  §  260;  Stat.  Tenn.  1871,  §  3079;  Laws  Utah,  1878, 
§  138;  Gen.  Laws.  Oreg.  1872,  p.  347,  §  52. 


§   474.]  DUTIES  OF  INDIVIDUAL  GRAND  JURORS.  567 

these  duties  may  be  performed  without  obstruction,  the 
grand  jury  is  generally  granted  free  access  to  public  prisons 
and  to  all  public  records  of  the  county.^ 

They  must  also  examine  into  the  condition  of  the  county 
treasury;"^  inspect  the  bonds  of  all  county  officers  with  re- 
gard to  their  correctness  and  sufficiency  ;^  examine  the  tax 
collector's  books,  his  reports  and  settlements  ;  *  ascertain 
whether  the  several  towns  of  the  county  have  duly  assessed, 
collected  and  expended  the  tax  for  the  support  of  schools 
as  required  by  law  ;  ^  make  a  careful  examination  of  the 
condition  of  the  a(;counts  of  the  collecting  officers  of  the 
county,  dockets  of  justices  of  the  peace  and  any  other  mat- 
ters relating  to  the  general  school  fund.*^ 

In  Pennsylvania  they  are  charged  with  the  duty  of  ap- 
proving of  the  erection  of  county  buildings^  and  of  the  in- 
corporation of  boroughs.^  In  Georgia  they  examine  state- 
ments of  the  liabilities  of  the  county  and  fix  the  amount  of 
tax  required  to  discharge  such  liabilities.^  They  also  act  as 
a  board  of  equalization  for  the  correction  of  tax  returns,'® 
and  a  board  of  revision  for  the  correction  of  the  list  of 
voters.'^ 

§  474.  Duties  of  Individual  Grand  Jurors  in  Connecti- 
cut   and    Vermont. —  In    these     States    the    grand    jurors 

iCtil.  Penal  Code,  §  924:;  Comp.  Laws  Ariz.  §605;  Ark.  Dig.  Stat. 
1874,  §  1754;  Miller's  R.  C.  Towa,  1880,  §  4278;  Bullitt's  Ky.  Cr.  Code, 
§  102;  2  Stat,  at  Large,  Minn.  1873,  p.  103;  R.  C.  Miss.  1880,  §  1674; 
Comp.  L.  Nev.  1873,  §  18.36;  Gen.  Laws  N^ew  Mexico,  1880,  p.  370,  §  10; 
New  York  Code  Crim.  Proc.  1881,  §  261;  Stat.  Tenn.  1871,  §  5080;  Gen- 
Laws  Oreg.  1872,  p.  347,  §  53;  Laws  Utah,  1878,  §  139;  Comp.  L.  Utah, 
1876,  p.  56,  §  4. 

^  Code  Ala.  1876,  §§  4767,  4768;  Code  Ga.  1873,  §  3920  et  seq.;  Stat. 
Tenn.  1871,  §  5079. 

3  Code  Ala.  1876,  §§  4767,  4768;  Stat.  Tenn.  1871,  §  5079. 

*R.  C.  Miss.  1880,  §  1675. 

•■'  G.  S.  Vt.  1862,  p.  163,  §  89. 

8  Ark.  Dig.  Stat.  1874,  §  1756.     See  also  Laws  Tenn.  1875,  oh.  46,  §  4. 

'  Bright.  Purd.  Pa.  Dig.,  p.  296,  §  15. 

*•  Bright.  Purd.  Pa.  Dig.,  p.  165,  §  1  e«  seq. 

'■>  Code  Ga.  1873,  §  510. 

JO  Code  Ga.  1873,  §  3919. 

11  Code  Ga.  1873,  §  3924. 


5(58  THE  ESTABLISHED  GRAND  JURY.  [CH.   XXIII. 

possess  important  functions  as  peace  officers.  A  limited 
number,  in  Connecticut,  not  less  than  two  nor  more  than 
six,*  are  chosen  annually  by  the  town  meeting  whose  duty 
it  is  to  "  diligently  inquire  after  and  make  complaint  of  all 
crimes  and  misdemeanors  that  shall  come  to  their  knowl- 
edge, to  the  court  having  cognizance  of  the  offense,  or  to 
some  justice  of  the  peace  in  the  town  where  the  offense  is 
eommitted."  -  To  this  end  they  may  require  any  person 
informing  them  of  the  commission  of  a  crime,  to  make  in- 
formation under  oath,  and  may  administer  the  witness  oath 
to  him."  ^  In  Connecticut  the  grand  jurors  in  each  town, 
or  any  three  of  them,  may  meet  to  advise  concerning 
offenses  committed  therein,  and  when  so  met  have  all  the 
powers  of  a  justice  of  the  peace,  when  holding  court  to 
commit  for  contempt.* 

In  Vermont  it  is  the  duty  of  the  grand  juror  to  arrest 
without  warrant  persons  guilty  of  having  for  sale  intoxicat- 
ing liquors  contrary  to  law,^  to  seize  the  same;^  also  to 
seize  and  deliver  to  the  State's  attorney  counterfeit  bank 
bills  and  implements  for  counterfeiting;^  to  arrest  Avithout 
warrant  disturbers  of  relioious  meetin2:s,^  as  also  intoxicated 
persons  guilty  of  a  l^reach  of  the  peace.'' 

§  475.  The  Institution  Euloj^ized. —  It  is  frequently  said 
that,  in  the  struggles  which  at  times  arose  in  England  be- 
tween the  powers  of  the  king  and  the  rights  of  the  subject, 
the  grand  jury  often  stood  as  a  l)arrier  against  persecution  in 
the  king's  name,  until,  at  length,  it  came  to  be  regarded  as  an 


»  G.  S.  Conn.  1875,  p.  241,  §  1.     See  also  G.  S.  Vt.  I8G2.  p.  107,  §  13. 

2  G.  S.  Conn.  1875,  p.  531,  §  2.  See  also  G.  S.  Vt.  1862.  p.  116,  §§  80. 
87;  id.,  p.  602.  §  35;  p.  616,  §  13;  p.  606,  §  30.  See  State  v.  Davis. 
52  Yt.  376;  State  v.  Drew,  51  Vt.  56;  Biackett  v.  Stat*-.  2  Tyler,  152; 
State  V.  Comstock,  27  Vt.  551;  Smith  v.  Siatc,  j9  Conn.  493. 

»  G.  S.  Conn.  1875,  p.  531,  §  3. 

*  G.  S.  Conn.  1875,  p.  531,  §§  4,  5. 

5  G.  S.  Vt.  1862,  p.  596,  §  25. 

« Ifnd. 

">  Id.,  p.  680,  §  12. 

^  Id.,  p.  587.  §  6. 

^  Id.,  p.  600,  §33. 


§   47().]  THIS  EULOGY  CRITICISED.  569 

institution  by  which  the  subject  wus  rendered  secure  against 
-oppression  from  unfounded  prosecutions  of  the  crown. ^ 

§  476.  This  Euloj?y  criticised. —  But  it  is  believed  that 
the  importance  of  this  institution,  as  a  bulwark  for  the  pro- 
tection of  the  rights  of  the  [)eople  and  thj  nobility  against 
regal  oppression,  has  ]>een  greatly  rveresti united.  It  is  true, 
indeed,  that  in  the  iniquitous  proceedings  against  the  Earl 
of  Shaftesl)ury  the  grand  jury  merited  all  the  eulogy  which 
it  has  received  for  its  firmness  upon  that  occasion.^  But 
there  are  two  potent  reasons  which  go  to  show  that  such 
exhibitions  of  opposition  to  the  will  of  the  crown  must  have 
been  rare :  ^  1.  Because  the  selection  of  every  panel  of 
jurors  lay  wholly  within  the  discretion  of  the  sheriff,  himself 
in  a  measure  a  creature  of  royal  authority.  2.  Because  the 
crown  was  apt  to  deal  severeh^  with  jurors  who  opposed  its 
Avill,  Each  of  the  foregoing  reasons  appears  in  the  case  of 
the  Earl  of  Shaftesbury,^  and  perhaps  it  is  not  too  much 
to  sa}^  that  the  books  do  not  furnish  another  case  like  it ;  so 
that  the  praise  which  was  deserved  by  this  particular  grand 
jury  has  in  later  times  been  quite  undeservedly  accorded  to 
the  institution  itself. 

1  Mr.  Justice  Field  in  a  chaige  to  the  grand  jury,  reported  in  2  Sa\vy. 
<>69.  See  also  the  charge  of  King.  .]..  ia  Ee  Lloyd  and  Carpenter, 
5  Penn.  L.  J.  o5,  62;  3  Clark  (Penn.),lHS,  196;  Whart.  C.  L.  (3rd  ed.) 
220;  AVhart.  Cr.  PI.  &  Pr.  (Sth  ed.)  §  338,  note. 

2  8  How.  St.  'J'r.  759. 

3  Upon  a  reading  of  the  whole  case  of  the  Earl  of  Shaftesbury,  there 
•can  be  little  doubt  that  the  sheriff  was  a  zealous  aiJherent  of  that  noble- 
man. The  grand  jury  was  probably  packed  by  this  officer  in  behalf  of 
the  accused,  instead  of  the  crown,  as  the  case  must  ordinarily  have  been. 
The  partiality  t)f  the  sheriff  for  the  earl  did  not  escape  the  notice  of  the 
Lord  Chief  Justice  and  the  Attorney  General.  Avho  wrestled  with  the 
grand  jury  to  yjrocure  an  indictinent.  Note  the  following  dialogue  early 
in  the  proceedings:  "  Shekifk,  P. —  I  desire  the  witne-ses  may  be  kept 
out  of  the  court. and  called  one  by  one.  Loud  CiiiiiF  Justice  (  Pember- 
ton). —  It  is  a  thing,  certainly,  that  the  King's  counsel  will  not  be  afraid 
■of  doing;  but  sheriffs  do  not  use  to  n<ove  anything  of  this  nature  in 
court,  and  therefore  'tis  not  your  duty,  Mr.  Sheriff,  to  meddle  with  it- 
Sheriff  P. —  It  was  my  duty  last  time,  my  lord,  and  appointed. 
Attorney  General  (Sir  Rob.  Sawyer). —  You  were  acquainted  'twas 
not  your  duty  last  time,  and  you  appear  against  the  King."'  8  How.  St. 
Tr.  775. 

*  8  How.  St.  Tr.  842,  note. 


570  SELECTION,  DRAWING  AND  SUMMONING.    [CII.  XXIV. 


CHAPTER    XXIV. 

OF    THE  QUALIFICATIONS,  SELECTION,  DRAWING  AND  SUMMON- 
ING   OF    GRAND    JURORS. 

SECTION. 

480.  Qualitieations  at  Coninioii  Law. 

481.  Under  American  Statutes. 

482.  In  Federal  Courts. 

483.  Selection  of  Grand  Jurors. 

(1.)  At  Common  Law  and  under  6  Geo.  IV..  c.  50. 
(2.)  In  United  States  from  General  Jur}'  List. 
(3.)  Separate  Grand  Juiy  List. 

484.  Drawing  the  Panel. 

485.  The  Panel  constituted  in  the  Discretion  of  Certain  Officers. 

486.  Smnmoning  tlie  Panel. 

§  4S0.  Qualificatiou.s  at  Common  Law. —  That  grand 
jurors  ought  to  be  freeholders  was  the  opinion  of  eminent 
autliorities  upon  the  common  hiw,^  but  to  what  amount 
seems  to  have  been  uncertain.^  "However,"  sajs  Black- 
stone,  "  they  are  usually  gentlemen  of  the  best  figure  in 
the  county."  The  paucity  of  freeholders  in  cities  led  to- 
the  adoption  of  the  same  rule  proscribing  the  qualifications 
of  grand  jurors  therein,  as  was  adopted  in  the  case  of  petit 
jurors,^  namely,  that  the  freedom  of  the  city  be  considered 
as  a  substitute  for  the  freehold  qualification  required  in  the 
county  at  large.* 

§  481.  Under  American  Statutes. —  We  have  previously 
examined  the  qualifications  demanded  of  petit  jurors  in  the 

1  Hale  P.  C.  155;  4  Bl.  Comm.  :'.02.      But  see  2  Hawk.  P.  C.  25,  §  19. 

2  Ibid. 

3  Rex  V.  Higgins,  Sir  T.  Kaym.  484. 

*  See  Sheridan's  Case,  31  IIow.  St.  Tr.  811;  Anon.  Russ.  &  Ry.  177. 


§481.]  UNDER  AMERICAN  STATUTES.  571 

several  States.^  The  statutes  rarely  demand  any  higher  qual- 
ification for  grand  jury  service.-  The  sections  prescribing 
the  qualifications  of  jurors,  usually  either  specify  that  such 
shall  be  the  qualifications  of  jurors,  grand  and  petit,  or  for 
jury  service  generally.^  And  the  same  is  generally  true  of 
statutes  prescribing  exemptions  from  jury  duty.* 

1  Ante,  §  26. 

2  State  V.  Quiniby,  51  Me.  395.  In  West  Virojinia,  the  qualiflcatiou  of 
freehold  is  I'equired  of  grand  jurors  in  addition  to  other  qualifications 
demanded  bj'  law  of  petit  jurors.  See  Rev.  Stats.  W.  Va.  1879,  cli.  53,  §  3. 
The  Kentucky  statutes  render  incompetent  for  grand  jury  service  one 
"  who  for  reward  has,  within  the  preceding  six  months,  stood  a  horse, 
jack  or  bull."  G.  S.  Ky.  1S79,  p.  570,  §  1.  The  statute  of  this  State  con- 
fining the  selection  of  grand  jurors  to  white  citizens,  is  unconstitutional. 
Com.  V.  JoliHson,  78  K3'.  509.     See  ante,  §  27  et  seq. 

3  Code  Ala,  1876.  §  4732  et  seq.;  Comp.  L.  Ariz.  1877,  §  2104;  Ark.  Dig. 
Stat.  1874,  §  3654;  Cal.  Code  Civ.  Proc,  §  198  et  seq.;  Gen.  Laws  Colo. 
1877,  §  1460;  Rev.  Code  Del.  1874,  p.  657,  §  2;  Code  Ga.  1873,  §  3930; 
R.  S.  111.  1880,  p.  649,  §  9;  Miller's  R.  C.  Iowa,  1880,  §  4255;  Comp.  Laws 
Kan.  1879,  §  2964;  G.  S.  Ky.  1879,  p.  570,  §  1;  id.,  p.  571,  §  2;  R.  S.  La. 

1876,  §  2125;  R.  S.  Me.  1871,  ch.  106,  §  2;  R.  C.  Md.  1878,  p.  558,  §  1; 
id.,  p.  559,  §  2;  R.  S.  Me.  1871,  ch.  106,  §  2;  G.  S.  Mass.  1860,  ch.  132,. 
§  1;  R.  S.  Mo.  1879,  §  2777;  R.  C.  Miss.  1880,  §  1661;  Comp.  L.  Neb. 
1881,  p.  617,  §  657;  Comp.  L.  Nev.  1873,  §§  1051,  1058;  Rev.  N.  J.  1877, 
p.  532,  §  6;  Gen.  Laws  New  Mexico,  1880,  p.  366,  §  1;  Battles'  Rev. 
N.  C.  187;5.  p.  860,  §  229s;  R.  S.  So.  Car.  1873,  p.  746,  §  2;  Stat.  Tenn. 
1871,  §  4002;  Laws  Utah,  1878,  §  117;  R.  S.  Wis.  1878,  §  2524. 

*  Code  Ala.  1876,  §  4734;  Rev.  Stats.  U.  S.,  §  800;    Comp.  Laws  Ariz. 

1877,  §  2405;  Cal.  Code  Civ.  Proc,  §  200;  Ark.  Dig.  Stat.  1874,  §3658; 
Gen.  Laws  Colo.  1874,  §  1461 ;  Rev.  Code  Del.  1874,  p.  657,  §  2;  Supp.  to 
Ga.  Code  of  1873,  §  414  et  seq,;  Com.  L.  Kan.  1879,  §  2980;  R.  S.  La. 
1876,  §  2126;  R.  C.  Md.  1878,  p.  562,  §  8  e«  seq.;  R.  S.  Me.  1871,  ch.  106, 

3;  G.  S.  Mass.  1860,  ch.  132,  §  2;  Comp.  L.  Mich.  1871,  §  5994;  R.  S. 
Mo.  1879,  §  2778;  R.  C.  Miss.  1880,  §  1662;  Comp.  L.  Neb.  1881,  p.  617,. 
§  657;  Comp.  L.  Nev.  1873,  §1059;  Laws  Nev.  1875,  p.  137,  ch.  81;  Laws 
Nev.  1875,  p.  177,  ch.  107;  3  N.  Y.  Rev.  Stat.  (6th  ed.),  p.  1015,  §  4;  Stat. 
Tenn.  1871.  §  4005;  Tex.  Code  Cr.  Proc,  Art.  358;  Comp.  L.  Utah,  1876, 
p.  355,  §  1074;  R.  S.  Wis.,  §  2525.  The  privilege  of  exemption,  as  in 
the  case  of  those  exempt  from  petit  jury  service,  (ante,  §  40).  furnishes 
no  ground  of  disqualirtcation  where  the  grand  juror  chooses  to  serve. 
State  V.  Adams,  20  Iowa,  486.  The  presence,  tlierefore,  of  a  person  over 
sixty  years  of  age  (the  statutory  limit)  will  not  vitiate  the  finding  of  the 
body.  Spigener  v.  State,  62  Ala.  383;  Koch  v.  State,  32  Oliio  St.  353; 
Breeding  v.  State,  11  Tex.  257;  Davison  v.  People.  90  111.  221;  Booth 
v.Com.,  16  Gratt.  519.  But  see  Kitrol  v. State,  9  Fla.  9.  So  officers  of 
the  Federal  government,  although  by  the  statutes  of  a  State  they  may 


572  SELECTION,  DRAWING  AXD  SUMMONING.     [CH.  XXIV. 

§  482,  In  Federal  Courts. —  Tho  tei'in  "  qutilifications," 
as  used  in  the  Revised  Statutes  of  the  United  States,^  refers 
to  the  general  qualifications  of  age,  citizenship,  etc.,  de- 
manded by  the  statutes  of  the  several  States.  A  grand 
juror  to  serve  in  the  Federal  Court  need  not  be  free  from 
all  exceptions  for  disqualification  pronounced  b}'  the  statutes 
of  the  State  within  which  the  court  sits.'^ 

§  483.  Selection  of  Urancl  Jurors. —  (I.)  At  Common 
Laio  and  under  G  Geo.  IV.,  c.  50. —  At  common  law  the 
sheriff  had  the  same  unqualified  power  of  selection  in  the 
ease  of  grand  as  well  as  petit  jurors.  Upon  the  summons 
of  any  session  of  the  peace,  and  in  cases  of  commissions  of 
oyer  and  terminer  and  jail  delivery,  there  issued  a  precept 
either  in  the  name  of  the  king,  or  of  two  or  more  justices, 
directed  to  the  sheriff,  upon  which  he  returned  twenty-four 
or  more  out  of  the  whole  county,  a  certain  number  being 
from  each  hundred,  from  which  panel  the  grand  jury  was 
organized.^  The  consolidated  jury  act  of  G  Geo.  IV.,  c. 
50  now  requires  a  general  list  of  jurors  to  be  prepared  by 
stated  officers,  and  from  this  the  sheriff,  upon  the  issue  of  a 
precept,  makes  his  selection  of  jurors  to  attend.'' 

(2.)  In  United  States,  from  General  Jury  List. —  What 
has  hitherto  been  said  in  regard  to  the  selection  of  the  lists 
of  petit  jurors,^  is  of  general  application  to  grand  jurors  also. 
The  lists  selected  by  the  oflicers  there  mentioned  generally 
include  those  qualified  for  grand  as  well  as  petit  jury  ser- 
vice.'' 

be  excused  from  serving  as  jurors,  are  not  disqualified  to  act  as  such. 
*State  V.  Quimby.  51  Me.  3!)5;  Glassinger  v.  State,  24  Oliio  St.  20(3. 

'  §  800.     See  the  full  provision,  onie.,  §  48. 

'^  United  States  v.  Williams,  1  Dill.  485.  But,  coH<ra,  see  United  States 
V.  Reed,  2  Blatch.  435. 

••'  1  Cliitty  Cr.  L.  310;  2  Hale  P.  C.  154;  2  Hawk.  P.  C.  cb.  25,  §  IG;  4 
Bl.  Comm.  302. 

4  Sec.  14. 

5  AnU.,  §  43  et  seq. 

6 Laws  U.  S.  1879,  (Sess.  1.)  Ch.  52,  §  2;  Code  Ala.  1876,  S  4773;  Cal. 
■Code  Civ.  Proc.  §  204 e<  seq.;  Gen.  Laws  Colo.  1877,  §  1463;  G.  S.  Conn. 
1875,  p.  24  §  1 :  Rev.  Code  Del.  1874,  p.  6.57,  §  2;  Code  Ga.  1873,  §  3931; 
3Iiller"s  R.  C.  Iowa,  1880.  §  4255;  Conip.  L.  Kan.  1879,  §  2964;  R.  S.  La. 


§   484.]  DRAWING  THE  PANEL.  573 

(3.)  Separate  Grand  Jury  List. —  In  some  of  the  States 
and  Territories,  after  the  selection  of  the  general  list  of 
jurors  for  the  county,  another  step  is  taken  before  the  dravv- 
ing  of  the  panel  of  grand  jurors  for  a  particular  term, 
namel}^  the  preparation  of  a  separate  "  Grand  jury  list." 
This  list  consists  of  a  selection  of  names  of  persons,  from 
the  general  list  or  other  sources,  to  serve  only  as  grand 
jurors.  From  this  "  Grand  jury  list"  the  drawing  is  made 
wherever  a  panel  is  desired.  The  preparation  of  a  separate 
grand  jury  list,  with  a  view  to  obtaining  persons  of  superior 
qualifications,  is  highly  commendable  because,  a  more  in- 
telligent panel  will  thereby  be  secured,  than  if  the  drawing 
were  made  directly  from  the  general  list  of  persons  qualified 
for  common  jury  service.  This  is  the  practice  in  the  several 
jurisdictions  noted  below. ^ 

§  484.  Drawing-  the  Panel. —  This  usually  differs  in  no 
respect  from  the  drawing  of  a  panel  of  petit  jurors.^  The 
grand  and  petit  jurors  are  usually  drawn  from  the  same 
box,^  and  in  some  States  both  panels  for  the  same  term  are 

1876,  §  2127;  R.  C.  Md.  1878,  p.  558,  §  1;  p.  559.  §  2;  R.  S.  Mo..  1871,  cli. 
106,  §  1;  G.  S.  Mass.  1860,  ch.  132,  §  6;  Comp.  L.  Mii'h.  1871,  §  5977; 
Stat,  at  Large,  Minn.  1S73,  p.  221,  §  23;  R.  S.  Mo.  1879,  §  2784;  Couip. 
L.  Neb.  p.  617,  §  658;  R.  S.  Ohio,  1880,  §  5161;  Bright.  Purd.  Pa.  Dig., 
p.  829,  §  2;  R.  S.  So.  Car.  1872,  p.  746,  §  2;  Comp.  L.  Utah,  1876.  p.  55, 
§  4;  G.  S.  Vt.  1862,  p.  117  §§  89,  90;  R.  S.  Wis.  1878.  §  2527.  See  People 
V.  Crowey,  56  Cal.  36. 

1  Comp.  Laws  Ariz.  1877,  §  2408;  Rev.  Code  Del.  1874,  p.  657,  §2; 
Comp.  L.  Mich.  1871,  §  59"^7;  Stat,  at  Large  Minn.  1873,  p.  221,  §  23; 
Code  Va.  1873,  p.  1235,  §  2;  R.  S.  Wis.  1878,  §  2527;  2  Stat.  Ind.  1876,  p. 
417,  note,  §  2;  3  N.  Y.  Rev.  Stat.  (6th  ed.)  p.  1015,  §  1. 

2  Ante.,  §  55  et  seq. 

3  Act  of  June  30, 1879,  Laws  of  U.  S.  1879,  ch.  52,  §  2 ;  Code  Ala.  1876,. 
§  4736  et  seq;  Comp.  Laws  Ariz.  1877,  §  2407;  Cal.  Code  Civ.  Proc. 
§  204  et  seq.;  Gen.  Laws  Colo.  1877,  §  1465;  Rev.  Code  Del.  1874,  p.  057, 
§  2  ee  seq.;  Code  Ga.  1873,  §  3931;  Miller's  R.  C.  Iowa  1880,  §  4255; 
Comp.  L.  Kan.  1879,  §  2968  et  seq.;  R.  S.  La.  1876,  §  2127;  R.  C.  Md. 
1878,  p.  559,  §  3;  R.  S.  Me.  1871,  ch.  106,  §  4;  G.  S.  Mass.  1860,  ch.  132. 
§§  7  and  15;  Comp.  L.  Mich.  1871,  §  5982;  2  Stat,  at  Large  Minn.  1873, 
p.  1033,  §  80;  R.  S.  Mo.  1879,  §  2785;  Comp.  L.  Neb.  188^1,  p.  617.  §  659; 
Gen.  Stat.  N.  H.  1867,  ch.  242,  §  2;  R.  S.  Ohio  1880,  §  5167;  Bright.  Piird.. 
Pa.  Dig.,  p.  829,  §  2;  R.  S.  So.  Car.  1872,  p.  746,  §  2;  Comp.  L.Utah,  1870, 
p.  65,  §  4;  G.  S.  Vt.  1862,  p.  331,  §  5;  Code  Va.  1873,  p.  1236,  §  3;  R.  S.. 
Wis.  1878,  §  2532. 


574  SELECTION,  DRAWING  AND  SUMMONING,     [cil.  XXIV. 

drawn  at  the  same  time.^  "Where  this  is  not  done  the 
details  of  the  drawing  in  each  case  present  no  substantial 
difference.^  The  legishiture  viohitcs  no  constitutional 
guaranty  by  prescribing  that  the  grand  jurors  for  a  certain 
county  court  shall  be  di'awn  from  the  immediate  vicinity  in 
which  the  court  is  held.'" 

§  485.  The  Panel  constituted  in  the  Discretion  of  cer- 
tain Officers  in  some  States. —  In  New  Jersey  it  is  the 
duty  of  the  respective  sheriffs  of  the  several  counties  to 
cause  to  come  before  the  court  of  oyer  and  terminer  and 
general  jail  delivery,  at  the  times  and  places  of  holding  said 
courts,  twenty- four  good  and  lawful  men,  to  serve  as  grand 
jurors,  without  any  precept  being  issued  for  that  purpose.* 
This  gives  the  sheriff  all  the  arbitrary  jiower  of  selection 
which  he  possessed  at  common  law.^  This  seems  to  be  the 
practice  in  West  Virginia  also.*^  In  Nevada  the  panel  is  not 
drawn  b}'  lot,  but  is  selected  from  the  general  jury  list  by 
the  district  judge  or  clerk  and  a  county  commissioner.^ 

In  Arkansas,  Kentucky  and  Texas  no  general  list  of 
jurors  is  prepared  for  annual  service,  as  in  other  States. 
The  court  at  each  term  designates  three  persons,  having  the 
qualitications  of  jurors,  to  act  as  jury  commissioners,  who 
then  and  there  select  the  names  of  persons  to  serve  as 
grand  jurors  at  the  next  term  of  court.  From  these  names 
a  drawing  by  lot  is  made  of  names  of  persons  to  serve  at 
such  term.     The  lists  are  then  delivered,  under  seal,  to  the 

1  Code  Ala.  1876,  §  4738;  Cal.  Code  Civ.  Proc,  §  219;  Rev.  Code  Del. 
1874,  p.  658,  §  4;  Code  Ga.  1873,  §  3931;  Comp.  L.  Kan.  1879,  §  2976; 
R.  S.  La.  1876,  §  2127;  R.  C.  Md.  1878,  p.  559,  §  3;  Id.,  p.  561,  §  5;  G.  S. 
Mass.  1860,  ch.  171,  §  3;  Comp.  L.  Mich.  1871,  §  5985;  Comp.  L.  Neb. 
1881,  p.  618,  §  660;  R.  S.  Ohio  1880,  §  5167;  G.  S.  R.  I.  1872,  p.  432,  §  19; 
Comp.  L.  Utah  1876.  p.  55.  §  4.  In  North  Carolina  only  one  panel  is 
drawn  and  summoned.  After  the  jurors  appear  in  court,  the  body  are 
divided  into  jurors  grand  and  petit.     Battle's  Rev.  N.  C.  p.  860,  §  229  s. 

2  See  Comp.  Laws  Ariz.  1877,  §§  2416,  2422;  2  Stat.  Ind.  1876,  p.  417, 
note  §  2;  3  N.  Y.  Rev.  Stat.  (6th  ed.)  p.  1016,  §  11. 

3  Williams  v.  State,  61  Ala.  33;  Sanders  v.  State,  55  Ala.  183. 

*  Rev.  N.  J.  1877,  p  273,  §  36. 

*  See  in  this  connection  ante,  §  58. 

6  See  Rev.  Stats.  W.  Va.  1879,  ch.  53,  §  3. 

7  Comp.  L.  Nev.  1873,  §  1058;  Laws  Nev.  1873,  p.  34,  §  2. 


§   486.]  SUMMONING  THE  PANEL  575 

judge  of  the  court.'  In  Texas  the  sixteen  who  are  to 
serve  are  selected  directly  by  the  commissioners  without 
the  intervention  of  a  drawing.'-  In  Mississippi  the  board 
of  supervisors  of  each  county,  at  least  twenty  days  before 
every  term  of  the  circuit  court,  select  twenty  persons  com- 
petent to  serve  as  jurors,  to  constitute  the  grand  jury  for 
the  next  term  of  court.  The  names  of  the  persons  so 
selected  are  certified  to  tlie  clerk  of  the  court,  by  whom 
they  are  delivered  to  the  sheriff,  to  be  summoned.^  The 
practice  is  similar  in  Illinois.'' 

§  486.  Siunmoniug-  the  Panel.  —  This  differs  in  no  re- 
spect from  the  summoning  of  the  panel  of  petit  jurors.^ 
Where  the  drawing  of  the  panels  is  simultaneous,  they  are 
generally  delivered  at  the  same  time  to  the  sheriff,  to  whom 
the  clerk  issues  for  each  panel,  the  order  or  writ  of  venire 
facias  of  the  court,  commanding  the  presence  of  the 
jurors.*^ 

1  Ark.  Dig.  Stat.  1874.  §  367;  G.  S.  Ky.  1879,  p.  571,  §  1.   See  also  Gen. 
Laws  New  Mexico,  1880,  p.  363,  §  3. 
»  Texas  Code  Cr.  Proc.  1879,  Art.  357. 
3R.  C.  Miss.  1880,  §  1665. 

*  R.  S.  111.  1880,  p.  649,  §  9. 

*  Ante,  §  69. 

«  Co^le  Ala.  1876.  §  4744;  c:al.  Code  Civ.  Proc,  §  219,  subsec.  8;  Ark. 
Dig.  Stat.  1874,  §  3677;  Rev.  Code  Del.  1874,  p.  659,  §  10;  Code  Ga.  1873, 
§  3931;  R.  S.  El.  1880,  p.  649,  §  9;  Miller's  R.  C.  Iowa  1880,  §  4255; 
Comp.  L.  Kan.  1876,  §  2977;  R.  C.  Md.  1878,  p.  560;  R.  S.  Me.  1871, 
ch.  106,  §  9;  2  Stat,  at  Large  Minn.  1873,  p.  1033,  §  82;  Comp.  L.  Xeb. 
1881,  p.  618,  §  661;  R.  S.  Ohio,  1880,  §  .5167;  Comp.  L.  Utah,  1876, 
p.  55,  §  4.  In  a  late  case  in  Massachusetts  it  was  held  that  when  the 
venire  and  the  return  thereon  are  in  other  respects  formal,  and  there  is 
no  question  as  to  the  identity  and  qualifications  of  the  person  who 
attends  and  serves  as  a  grand  juror,  neither  an  inconsistency  in  the  de- 
scription in  the  return  of  the  time  for  which  he  was  summoned,  nor 
the  want  of  an  indorsement  of  his  name  by  the  town  clerk,  nor  the 
omission  of  the  name  of  the  town  in  the  address  of  the  venire,  nor  the 
absence  of  a  statement  of  his  qualifications  in  the  venire  and  return, 
affects  the  validit.v  of  an  indictment  found  by  the  grand  jury  on  which 
he  serves.  Com.  v.  Moran.  130  Mass.  281.  As  to  the  method  of  sum- 
moning jurors  in  New  England,  see  ante,  §  59. 


576  TALESMEN  AND  SPECIAL  (JUAXD  JURORS,     [ciI.   XXV. 


CHAPTER  XXV. 


OF    TALESMEN    AND  SPECIAL  GRAND    JURORS. 

SECTION. 

488.  No  Tales  for  Grand  Jurors  at  Coniiuoii  Law. 

489.  But  granted  by  Statute  in  many  Stares. 
4J)0.     When  Sunnnoupd. 

491.  Whence  Summoned. 

492.  To  what  Number. 

493.  Summoned  in  the  Discretion  of  the  Sheriff. 

494.  And  upon  Verbal  Order  of  the  Court. 

495.  Qu:  lifications  of  Talesmen. 

496.  May  be  summoned  on  Reassembling  of  Grand  Jurj'. 

497.  Special  Grand  Jurors  at  Common  Law. 

498.  Under  Statutes  of  the  Several  States. 

(1.)  In  General. 

(2.)    Default    of    Jurors     unnecessarj'     under     California 

Practice. 
(3.)  Total  Default  construed  as  a  Deficiency. 

499.  Formalities  in  Procuring. 

500.  Court  cannot  capriciously  create  a  Default  of  Jurors. 

501.  Grand  Jury  for  Special  Term. 

(1.)  In  General. 

(2.)  Power  of  Court  to  order. 

(3.)  Must  be  summoned  according  to  Law. 
.502.     For  Adjourned  Term. 
503.    Reassembling  tiie  (irand  Jury. 

(1.)  In  General. 

(2.)  Within  what  Time. 

(3.)  Who  included  in  tlie  Order  for  Reassembling. 

§  488.   No  Talos   for  Grand   Jurors  at  Conmion  Law. — 

In  a  former  chapter,  discussing  the  organization  of  trial 
juries,  it  was  shown  that  talesmen  were  summoned  to  sup- 
ply a  deficiency  in  the  panel  of  regular  jurors,  arising  from 


§   489.]      BUT  GRANTED  BY  STATUTE  IN  MANY  STATES.  577 

the  non-attendance  of  such  jurors,  or  the  diminution  of  the 
panel,  by  challenores  allowed  or  jurors  excused.^  A  defi- 
ciency in  the  panel  of  errand  jurors  could  rarely  occur  at 
common  law  for  two  reasons.  1.  The  sheriff  usually 
summoned  twenty- four,  and  in  certain  cases  more,  any 
twelve  of  whom  might  constitute  the  grand  jury.  2. 
Challenges  were  not  allowed  to  grand  jurors  at  common 
law.^  Therefore  we  find  no  trace  of  a  tales  at  common  law 
to  supply  a  deficiency  of  grand  jurors,  nor  in  the  early 
statutes  granting  the  tales  de  circumstantibus  in  civil  ^  and 
criminal*  cases.  Accordingly,  it  is  held  that  the  court  can- 
not, in  the  absence  of  statutory  authority,  cause  a  de- 
ficiency in  the  panel  drawn  and  summoned,  to  be  filled 
by  directing  persons  to  be  summoned  from  the  bystanders 
or  by  awarding  a  venire  facias  for  this  purpose.^  But  this 
point  has  been  otherwise  decided  in  Mississippi.^ 

§  489.  But  grantetl  l>y  Statute  in  many  States. —  How- 
ever, with  the  recognition  of  the  right  of  challenge  of  grand 
jurors,  deficiencies  must  necessarily  occur  in  the  panel  of 
regular  grand  jurors  ;  hence  a  frequent  statutory  provision 
authorizing  the  summoning  of  talesmen  in  the  case  of  a 
deficiency  of  grand  as  well  as  petit  jurors.^ 

1  Chap.  VII. 

»  Post.  §  507. 

3  35  Hen.  VIII.  c.  6,  §  6. 

4  4  and  5  Phil.  &  Mary,  c.  7. 

«  State  V.  Syinonds,  36  Me.  128. 

6  Dowling  V.  State,  5  Smed.  &  M.  683;  Johnston  v.  State,  7  Smed.  & 
M.  58. 

T  Rev.  Stat.  U.  S.  §  808;  Cal.  Code  Civ.  Proc.  §  227;  R.  S.  111.  1880,  p. 
049,  §  9;  Code  Ala.  1876,  §  4754;  R.  S.  Wis.  1878,  §  2546;  Ark.  Dig.  Stat. 
1874,  §  3682;  Rev.  Code  Del.  1874,  p.  660,  §  13;  G.  S.  Ky.  1879,  p.  571, 
§  1;  R.  S.  So.  Car.  1873,  p.  740,  §  3;  Stat.  Tenn.  1871,  §  4016;  2  Stat.  Ind. 
1876,  p.  375,  §  15;  Id.,  p.  418,  §  10;  Gen.  Laws  Colo.  1877,  §  1477;  Mil- 
ler's R.  C.  Iowa,  1880.  §  4256;  Comp.  L.  Kan.  1879,  §  4566;  R.  C.  Miss. 
1880,  §§  1668,  1669;  Comp.  L.  Neb.  1881,  p.  618,  §  664;  G.  S.  N.  H.  1867, 
ch.  242,  §  2;  Texas  Code  Cr.  Proc.  1879,  Art.  368;  G.  S.  Vt.  18^2,  p.  332, 
§  13;  R.  S.  W.  Va.  1879,  ch.  53,  §  4.  In  some  States  it  is  necessary  that 
a  venire  facias  should  issue  for  the  return  of  such  jurors.  2  Stat,  at 
Large  Minn.  1873,  p.  1034,  §  85;  R.  S.  Ohio,  1880,  §  5171.  In  such  a 
case  the  sheriff  may  summon  the  jurors  before  the  receipt  of  the  writ. 

(37) 


578  TALESMEN  AND  SPECIAL  GRAND  JURORS.    [CH.  XXV. 

§  490.  AVlicn  Suininoiied. —  Although  there  may  be  ii  de- 
ficiency in  the  panel  of  grand  jurors  suninioiiod,  neverthe- 
less, if  enough  appear  to  form  a  jury,  the  court  is  not 
compelled  to  summon  jurors  to  supply  the  deficiency,  not- 
ivithstanding  the  statute  provides  that  **  if,  for  any  reason, 
the  panel  of  the  grand  jury  shall  not  be  full  at  the  opening 
of  such  court,  the  judge  shall  direct  the  sheriff  to  summon 
from  the  body  of  the  county  a  sufficient  numl)er  of  })ersons 
having  the  qualifications  of  jurors,  as  provided  by  this  act."  ^ 
There  being  no  necessity  for  the  summoning  of  jurors,  it 
is  obvious  the  word  "  shall"  may  be  read  as  "  may,"  and 
the  whole  provision  treated  as  directory  only.^  Under  the 
statute  of  Alabama,  ^  fixing  the  number  of  the  grand  jury 
at  not  less  than  fifteen  of  the  eighteen  persons  summoned, 
it  is  held  that  the  court  has  no  power,  when  fifteen  of  the 
number  summoned  are  in  attendance,  to  order  a  tales,  in- 
creasing the  number  of  the  jury  to  eighteen.  A  judgment 
of  conviction  on  such  an  indictment  cannot  be  supported.* 
However,  when  twelve  persons  only  attend  upon  the  sum- 
mons, there  is  no  error  in  adding  six  more  to  the  jury  by  a 
tales,  although  three  only  were  necessary  to  complete  the 
jury  according  to  law.^  After  talesmen  have  been  sum- 
moned to  supply  a  deficiency  caused  by  the  non-appearance 
of  certain  grand  jurors  of  the  regular  panel,  the  court  may 
summon  additional  talesmen  when  the  panel  is  again  dimin- 
ished, by  challenges,  below  the  requisite  number.* 

§  491.  Whence  Summoned. —  In  such  cases  the  tales- 
men are  frequently  summoned  from  the  bystanders,^  al- 
and afterwards  return  them  tliereon.  Newman  v.  State,  14  Wis.  393. 
In  others  the  deficiency  is  supplied  by  jurors  drawn  forthwitli.  G.  S. 
Mass.  1860,  eh.  171,  §  4;  New  York  Code  Crim.  Proc.  1881,  §  230. 

1  R.  S.  111.  1877,  ch.  78,  §  9. 

-  Beaslej'  v.  People,  89  111.  571. 

3  Rev.  Code  Ala.  1876,  §  4754. 

<  Berry  V.  State,  63  Ala.  126;  Preston  v.  State,  63  Ala.  127;  Cross  v. 
State,  63  Ala.  40.  But  see  People  v.  Colby,  54  Cal.  37.  This  irref,nilarity 
cannot  be  set  up  in  defence  of  a  proceeding  to  enforce  a  forfeited  recog- 
nizance.    Peck  V.  State,  63  Ala.  201. 

5  Yancy  v.  State,  63  Ala.  141. 

*  State  V.  Garhart,  35  Iowa,  315. 

7  Ark.  Dig.  Stat.  1874,  §  3682;  Rev.  Code  Del.  1874,  p.  660.  §  13;  G.  S. 


§    493.]     SUMMONED  IN  DISCRETION  OF  THE  SHERIFF.  579 

though  the  statutes  in  some  instances  expressly  forbid 
this,  directing  them  to  be  taken  from  the  body  of  the 
county  or  district.^  In  Colorado  they  may  be  summoned 
from  the  bystanders,  from  the  county  at  large,  or  the  court 
may  order  them  to  be  drawn  from  the  jury  box.^ 

§  492.  To  what  Niiiuber. —  Usually,  only  a  sufficient 
number  to  complete  the  panel  is  summoned.  In  Alabama, 
twice  as  many  as  this  number  are  brought  in.  From  this 
body  the  necessary  number  is  drawn  by  lot.^  This  method 
of  filling  the  deficiency  has  been  held  to  be  mandatory.  An 
indictment  was  adjudged  void  where  only  a  sufficient  num- 
ber of  talesmen  to  complete  the  panel  were  summoned.* 

§  493.  Siiininoned  in  the  Discretion  of  the  Sheriff. — 
The  court  cannot  properly  interfere  with  the  discretion  of 
the  sheriff  in  the  summoning  of  talesmen  as  grand  jurors. 
AVe  have  seen  that  this  is  the  rule  in  the  summoning  of 
talesmen  upon  petit  juries.^  Thus,  where  the  statute  pre- 
scribes only  that  grand  jurors  shall  be  freeholders  and 
householders,  the  court  cannot  direct  the  sheriff  to  summon 
*'from  among  the  registered  voters  of  the  county  having 
the  other  qualifications  required  by.  the  statute,  five  persons, 
in  order  to  complete  said  grand  jury."  "  Registration  as  a 
voter,"  said  Brickell,  C.  J.,  "  is  not  a  qualification  of  a 
juror,  grand  or  petit ;  and  the  courts  are  without  power  to 
prescribe  it.®  But  where  a  statute  provided  that  "in  case 
of  a  deficiency  of  grand  jurors  in  any  court,  writs  of  venire 
facias  may  be  issued  to  the  proper  officer  to  return  forth- 

Ky.  1879,  p.  571,  §  1;  R.  S.  So.  Car.  1873,  p.  746,  §  3;  Stat.  Tenn.  1871. 
§  4016;  2  Sta.  Ind.  1876,  p.  375,  §  15;  Id.,  p.  418,  §  10. 

1  Eev.  Stat.  U.  S.,  §  808;  Cal.  Code  Civ,  Proc.  §  227;  E.  S.  111.  1880, 
p.  649,  §  9.  Where  the  statute  directs  talesmen  to  be  summoned  from 
the  qiialitied  citizens  of  the  county,  the  court  cannot  direct  them  to  be 
taken  from  the  bystanders  in  the  court  room.  This  error  vitiates  the 
proceedings  of  a  grand  jury  so  formed.  Finley  v.  State,  61  Ala.  201 ; 
Couch  V.  State,  63  Ala.  163;  Cross  v.  State,  63  Ala.  40,  47. 

2  Gen.  Laws  Colo.  1877,  §  1468,   See  also  Brown  v.  Com.,  76  Pa.  St.  319. 

3  Code  Ala.  1876,  §  4754. 

*  Scott  V.  State,  63  Ala.  59. 

5  Ante,  §  94. 

^  Scott  V.  State,  63  Ala.  59.     Compare  Cross  v.  State,  63  Ala.  40. 


580  TALESMEN  AND  SPECIAL  GRAND  JURORS.      [CH.  XXV, 

with  such  further  number  of  gnuid  jurors  as  may  be  re- 
quired," it  was  held  that  the  court  might  so  far  control  the 
discretion  of  the  sheriff,  as  to  direct  him  to  summon  the 
necessary  numl)er  of  jurors  from  a  drawing  made  by  the- 
proper  authorities  from  the  list  of  qualified  jurors  from  the 
county.^  The  court  has  no  authority  to  direct  the  sheriff 
to  summon  talesmen  from  the  bystanders,  when  the  statute 
directs  them  to  be  taken  from  the  (jualified  citizens  of  the 
county;'  nor  to  summon  particular  persons  as  talesmen,^ 
nor  to  supply  a  deficiency  in  the  panel  of  grand  jurors  by 
transferring  the  requisite  number  from  the  petit  to  the  grand 
jury  panel,*  Such  irregularities  vitiate  the  subsequent  pro- 
ceedings of  the  grand  jury  so  formed.' 

§  494,  And  upon  Verbal  Order  of  Court. —  That  pro- 
vision found  in  the  statutes  of  most  of  the  States  authoriz- 
ing the  court,  upon  the  failure  of  the  jurors  to  appear,  or 
where  they  have  been  irregularly  drawn  or  summoned,  to 
issue  a  precept  or  venire  to  the  sheriff,  directing  him  to- 
summon  persons  from  the  body  of  the  county  to  serve,  etc.,. 
does  not  require  the  issue  of  such  process  when  a  portion 
only  of  the  jurors  fail  to  appear.  In  such  a  case  a  mere 
verbal  order  for  the  summoning  of  talesmen  will  be  suffi- 
cient.^ 

§  495.  Qualifications  of  Talesmen. —  Talesmen  for 
grand,  like  those  summoned  for  petit  jury  service,  should 
have  all  the  (qualifications  demanded  of  members  of  the  reg- 
ular panel. ^ 

§  496.  Maybe  summoned  upon  Reassembling  of  Grand 
Jury. —  Upon  the  reassembling  of  the  grand  jury  for  any 
purpose,  talesmen  may  be  summoned  to  supply  any  defi- 
ciency caused    by  the  failure    of  former  members    of   the 

1  Dukes  V.  State,  14  Fla.  499. 
2Finley  V.  State,  Gl  Ala,  201. 
'  Preuit  V.  People,  5  Neb,  377. 

*  Burley  v.  State,  1  Xeb.  385. 

*  But  see  Runnels  v.  State,  28  Ark,  121. 

«  State  V.  Miller,  53  Iowa,  84,  l84;   State  v.  Pierce,  8  Iowa,  231;  State 
V.  Muuzeninaier,  24  Iowa,  87. 
'  State  V.  Ilerndon,  5  Blackf,  75, 


§  498.]      UNDER  STATUTES  OF  THE  SEVERAL  STATES.  581 

body  to  appear,^  or  in  consequence  of  their  being  challenged 
off  after  appearance.  ^ 

§  497.  Special  Grand  Jtiry  at  Common  Law. —  At  com- 
mon law  there  were  two  occasions  upon  which  a  new  grand 
jury  might  be  assembled  where  the  original  body  had  been 
discharged.  1.  If,  before  the  end  of  the  sessions,  some  new 
felony  or  misdemeanor  were  committed,  and  the  offender 
taken  and  brought  into  custody  ;  or  if  some  former  offender 
not  yet  indicted  were  brought  in.  2.  To  inquire  into  the 
concealments  of  the  former  grand  jury,  namely,  their 
failure  to  indict  according  to  their  oath.^ 

Some  courts  have  considered  that  this  common  law 
power,  by  simple  direction  to  the  sheriff,  to  summon 
a  second  jury  after  the  discharge  of  the  first,  yet  re- 
mains, notwithstanding  the  statutes  prescribing  the  vari- 
ous formalities  for  the  selection  and  drawing  of  jurors.* 
This  conclusion  can  be  reached  only  by  regarding  the 
statutes  regulating  the  selection  and  drawing  of  jurors 
as  so  purely  directory  that  they  may  be  disregarded.  If 
they  may  be  disregarded  in  the  summoning  of  the  second 
jury,  so  may  they  be  in  the  summoning  of  the  original  panel ; 
from  which  it  would  follow  that  the  selection  of  every 
panel  of  grand  jurors  would  be  relegated  to  the  discretion 
of  the  sheriff  as  at  common  law.  This  cannot  be  the  law. 
When  an  emergency  arises,  requiring  the  presence  of  a  grand 
jury  after  the  regular  body  has  been  discharged,  in  the  ab- 
sence of  statutory  authority  to  summon  a  new  panel,  the 
€ourt  should  set  aside  the  order  of  discharge  and  reas- 
semble the  previous  grand  jury.^ 

§  498.  Under  the  Statutes  of  the  Several  States. —  (1.) 
In  General. —  The  statutes  of  many  of  the  States  provide,  in 
respect  to  grand,  as  in  the  case  of  petit  jurors,"  that  when,  in 

1  Watts  V.  Territory,  1  Wash.  T.  (N.  S.)  409;  Dowling  v.  State,  5 
Smed.  &  M.  683;  Dormaii  v.  State,  56  Ind.  454. 

2  State  V.  Mooney,  10  Iowa,  506. 
?  1  Chitty's  Cr.  L.  314. 

*  Stone  V.  People,  3  111.  326;  Mackey  v.  People,  2  Colo.  13. 

*  See  Newman  v.  State,  43  Tex.  525,  and  other  authorities  posf  §  503. 
•5  Ante,  §  81. 


582       TALESMEN  AND  SPECIAL  GRAND  JUROKS.  [CH.  XXV, 

consequence  of  a  neglect  of  duty  by  the  officers  designated  by 
law  to  jirovide  the  court  with  juiors,  or  when,  from  any  other 
cause,  there  are  no  jurors  for  the  term,  the  court  may  direct 
the  sheriff  forthwith  to  summon  a  panel  of  qualified  jurors  to 
supply  this  default.^  In  Kansas,  the  court  orders  a  draw- 
ing of  jurors  to  be  made  forthwith.^  Other  statutes  pro- 
vide that  when  an  offence  is  committed  during  the  session  of 
the  court,  after  the  regular  grand  juiy  has  been  discharged,^ 
or  when,  after  the  discharge  of  such  jury,  any  emergency 
arises,  the  court  may,  in  its  discretion  direct  the  sheriff  to 
summon  a  new  panel  of  grand  jurors.* 

(2.)  Default  of  Jurors  unnecessary  under  California 
Practice. —  Under  the  California  practice,  where  an  accused 
person  reduces  by  his  challenges  the  body  of  grand  jurors 
summoned,  to  a  number  below  that  necessary  to  constitute  a 
lawful  jury,  a  special  grand  jury  may  be  ordered  to  consider 
his  case.  This  may  consist  of  the  residue  of  the  original 
panel  and  talesmen  to  supply  the  deficiency,^  or  an  entirely 
new  body  may  be  summoned  for  this  purpose.  The  accused 
cannot  demand  the  former  as  a  matter  of  riirht.^ 


iCode  Ala.  1876,  §  4761;  Cal.  Code  Civ.  Proc,  §  226;  Ark.  Dig.  Stats, 
1874,  §  3603:  Gen.  Laws  Colo.  1S77,  §  1470;  Rev.  Code  Del.  1877,  p.  660, 
§  13;  2  Stat,  at  Large,  Minn.  1873,  p.  1034,  §  85;  R.  S.  Mo.  1879,  §  2785; 
R.  C.  Mii^s,  1880.  §  1668;  Gen.  Stats.  N.  H.  1867,  eh.  242,  §  3;  Stat.  Tenn.. 
1871,  §  4917;  Tex.  Code  Crim.  Proc.  1879,  Art.  367;  Cyphers  v.  People,  31 
N.  Y.  373;  State  v.  Holmes,  63  N.  C.  18;  State  v.  Mc(3artey,17  Minn.  76; 
People  V.  Kelly,  46  Cal.  355;  People  v.  MeDonell,  47  Cal.  134;  State  v. 
Myers,  51  Ind.  145;  Miers  v.  State,  56  End.  336;  Willey  v.  State,  52  Ind. 
246;  State  v.  Harris,  73  Mo.  287. 
Conip.  L.  Kan.  1879,  §  2985. 

8  Code  Ala.  1876,  §  4757;  Cal.  Penal  Code,  §  907;  Ark.  Dig.  Srat. 
1874,  §  1772;  Comp.  L.  Kan.  1879.  §  4581;  R.  S.  Mo.  1879,  §  1789; 
Comp.  L.  Xev.  1873,  §  1821;  Gen.  Laws  Oreg.  1872,  p.  344,  §  32;  N^w 
York  Code  Crim.  Proc.  1881,  §  235,     See  State  v.  Barnes,  20  Mo.  41::. 

<  Comp.  L.  Ariz.  1877,  §  590;  G.  S.  Ky.  1879,  p.  570,  §  4;  R.  S.  Mo. 
1879,  §2788;  Comp.  L.  Neb.  1881,  p.  726,  §  405;  R.  S.  Oliio,  1880, 
§  7203;  G.  S.  Vt.  1862,  p.  331,  §  4;  R.  S.  III.  1880,  p.  652,  §  19.  See- 
Empsou  v.  People,  78  111.  248. 

»  People  v.  Manahan,  32  Cal.  68;  People  v.  Colby,  54  Cal.  37. 

*  People  v.  Manahan,  supra. 


§501.]  GRAND  JURY  FOR  SPECIAL  TERM.  583 

(3.)  Total  Default  construed  as  a  Deficiencij. —  Under  a 
statute  giving  the  court  power  to  direct  the  sheriff,  upon 
the  non-attendance  of  the  nunil)er  of  grand  jurors  required 
by  law,  "  to  summon  forthwith  a  sufficient  number  of  per- 
sons qualified  to  serve  as  grand  jurors,  to  supply  the  defi- 
ciency,'' the  court  may  direct  this  officer  to  summon  an  en- 
tire panel,  if,  hy  the  failure  or  neglect  of  the  officers  charged 
with  the  duty  of  drawing  and  returning  juiors,  none  ap- 
pear.^ 

§  499.  Formalities  in  Procuring'. —  The  statutes  of  Ne- 
vada provide  that  a  grand  jury  drawn  upon  the  order  of  the 
court  after  the  commencement  of  the  term,  shall  be  selected 
with  all  the  formalities  required  in  procuring  the  original 
panel. "^  The  practice  is  otherwise  in  California.^  Under 
the  provisions  of  the  Tennessee  Code,  authorizing  the  Cir- 
cuit Court  to  "designate  other  good  and  lawful  men,  and 
direct  the  sheriff  to  summon  them,"  no  venire  \s  necessary.* 

§  500.  Court  cannot  capriciously  create  a  Default  of 
Jurors. —  A  judge  cannot  arbitrarily  quash  a  venire  regu- 
larly issued  by  the  officers  charged  with  this  duty  under  the 
statute,  and  proceed  to  organize  another  jury  under  the 
powers  conferred  upon  the  court  to  do  so  in  certain  special 
cases.  The  proceedings  of  the  body  thus  organized  will  be 
held  void.^  And  where  a  statute  expressly  prohibits  the 
interposition  of  a  challenge  to  the  array,  or  a  motion  to 
quash  the  venire,  it  seems  that  the  court  cannot,  of  its  own 
motion,  quash  a  venire  because  of  an  irregularity  in  the  draw- 
ing, and  i)roceed  to  summon  a  panel  of  jurors  by  a  special 
venire.^' 

§  501.  Grand  Jury  for  Special  Term. —  (I.)  In  Gen- 
eral.—  In  certain  States  a  grand  jury  for  a  special  term  may 

1  Stnviigliiui  V.  State,  IG  Ark.  37;  Edmonds  v.  State,  34  Ark.  720. 

2  State  V.  Lawry,  4  ^mv.  1(J1 ;  State  v.  McXainara,  3  Nev.  70. 

3  Peo|)le  V.  Rodrio-uez,  10  Cal.  r>0;  People  v.  Ciuutano,  15  Cal.   327; 
People  V.  Moice,  15  Cal.  329. 

*  Boyd  V.  State,  6  Coldvv.  1. 

5  O'Byrnes  v.  State,  •")!  Ala.  25;  State  v.  Jacobs,  G  Tex.  U',).      See   in 
this  connection,  ante,  §  81,  subsec.  2. 
«  Baker  v.  Stale,  23  Miss.  243. 


584  TALESMEN  AND  SPECIAL  GRAND  JURORS.     [CH.  XXV. 

be  orgaiiizod  whenever,  in  the  opinion  of  the  court,  the 
public  good  requires  it.^  In  Arkansas  this  can  be  done  only 
in  a  single  eniergenoy,  namely,  if  any  person  shall  be  con- 
fined in  jail  who  may  not  have  been  indicted."^  In  Illinois 
and  Vermont  this  jury  is  organized,  as  a  matter  of  course, 
whenever  a  special  term  of  court  is  called.^ 

(2.)  Power  of  Court  to  order. —  A  statute  authorizing  a 
court  to  hold  special  terms  in  ceilain  cases,  without  any 
limitation  placed  upon  its  powers,  impliedly  confers  author- 
ity upon  the  court  to  summon  a  grand  jury  for  any  such 
term/  But  it  has  been  lield  that  such  a  statute  does  not 
warrant  the  finding  of  an  indictment  at  the  special  term 
against  any  other  person  than  the  one  for  whose  trial  the 
court  was  convened.^  The  better  opinion,  however,  would 
seem  to  be  that  whenever  a  court  may  be  legally  held,  it 
possesses  all  its  constitutional  jurisdiction.'' 

(3.)  Must  be  summoned  according  to  Law. —  Upon  call- 
ing a  special  term  of  court,  unless  authorized  by  statute, 
the  judge  has  no  authority  to  direct  the  sheriff  to  summon 
a  grand  jury.  That  body  must  be  selected  in  the  manner 
prescribed  by  law,  and  the  court  should  so  direct.  A  statu- 
tory provision  giving  the  court  power  to  direct  the  sheriff 
to  summon  a  jury  when  the  proper  ofiicers  fail  to  provide 
the  court  w'ith  a  panel  of  jurors,  or  when  the  jurors  fail  to 
appear,  cannot  serve  thispuri)ose.  The  application  of  such 
a  provision  must  be  confined  to  the  exigency  which  it  is 
plainly  designed  to  relieve." 

§  5t)2.  For  adjourned  Term. —  An  order  for  adjourn- 
ment of  court  does  not  jpev  se  effect  a  disorganization  of 
the  grand  jury  in  service  at  the  time  of  making  such  order ; 

1  (Jode  Ala.  1876,  §  4758;  Stat.  Tenn.  1871,  §  402;};  Kev.  Stat*.  W.  Va. 
1879,  ch.  53,  §  1. 

2Ark.  Dig.  Stat.  1874,  §11GG. 

3  R.  S.  111.  1880  p.  32!),  §  51 ;  G.  S.  Vt.  1862.  p.  332,  §  17. 

*  People  V.  Carabiii,  14  Cal.  438. 

*  Wilson  V.  State,  1  Blackf .  428. 

6  Young  V.  State,  2  How.  (Mi^;s.)  S65;  Ilaningtoii  v.  State.  36  Ahi.  236. 
^  McElvoy  V.  State,  9  Neb.  157. 


■§    503.]  EEASSEMBLING  OF  THE  GRAND  JURY.  585 

therefore  it  may  meet  for  further  action  at  the  adjourned 
term.^  A  grand  jury  excused  until  a  certain  day  is  not 
dissolved  by  its  failure  to  appear   upon  the  day  appointed.- 

§  503.  ixeassenibliiig-  the  Grand  Jiii*y. —  (!•)  In  Gen- 
eral.—  The  statutes  of  a  few  States  provide  that  when  the 
^rand  jury  is  dismissed  before  the  court  adjourns,  they 
may  be  summoned  again,  on  any  special  occasion,  at  such 
time  as  the  couit  directs.^  But  it  is  not  clear  that  this  may 
not  be  done  without  the  aid  of  such  a  statute.* 

(2.)  Within  lohat  Time. —  In  the  opinion  of  the  Su- 
preme Court  of  Iowa,  where  grand  jurors  are  drawn  for  a 
year's  service,  a  court  of  general  and  original  jurisdiction 
in  criminal  matters  has  power  to  reassemble  the  grand  jury 
during  any  term  of  the  year  after  its  discharge.^  In  South 
■Carolina,  grand  juries  are  drawn  for  service  during  the 
year  and  serve  "  until  another  grand  jury  is  impanelled  in 
their  stead."  ^  Therefore,  although  the  year  of  service  has 
expired,  the  grand  jury  may  be  reassembled,  if  the  next 
•drawing  is  quashed  for  fraud  or  informality.^  In  the  ab- 
sence of  such  a  provision,  it  seems  that  a  panel  of  grand 
jurors,  drawn  for  one  year's  service,  cannot  find  an  indict- 
ment after  the  expiration  of  this  term.^ 

(3.)  Who  included  in  the  Order  for  Reassembling. — 
Members  of  the  panel  from  which  the  grand  jury  was 
formed,  who  did  not  appear  and  act  with  their  fellows  be- 
fore they  were  discharged,  may  be  re-summoned,  and,  on 

1  Harper  v.  State,  42  Ind.  405;  State  v.  Pate,  67  Mo.  488:  State  v.  Davis, 
22  Minn.  423;  Ulmer  v.  State,  14  Ind.  52. 

2  Clem  V.  State,  33  Ind.  418. 

s  R.  S.  Me.  1871,  cli.  134,  §  7;  G.  S.  Mass.  1860,  oil.  171,  §  9;  Comp. 
L.  Midi.  1871,  §  7889;  R.  S.  Wis.  1878,  §  2556.  See  also  Gen.  Laws  Oreg. 
1872,  p.  344.  §  32;  2  Stats.  Ind.  1876,  p.  375,  §  15.  See  Long  v.  State,  46 
Ind.  582. 

<  Reg.  V.  Hollovvay,  9  Car.  &  P.  43;  Wilson  v.  State.  32  Tex.  112;  New- 
man v.  State,  43  Tex.  525. 

5  State  V.  Reid,  20  Iowa  413. 

6  R.  S.  So.  Car.  1873,  p.  746,  §  1. 

"<  State  V.  McEvoy,  9  So.  Car.  208.    See  also  Com.  v.  Rich,  14  Gray, 
335. 
8  Barger  v.  State,  6  Blackf.  188. 


586  TALEiSMEX  AND  SPECIAL  GRAND  JURORS.      [CH.  XXV. 

appearing  and  being  sworn  and  impanelled,  may  act  with 
them  on  this  second  convocation.^  Talesmen,  selected  "  to 
serve  only  during  the  term  at  which  they  are  summoned,"  * 
may  be  reassembled  with  the  remainder  of  the  body  during 
the  term  for  Avliich  they  were  summoned  to  serve. ^ 

1  Findley  v.  People,  1  Mich.  234. 

2  Iowa  Key.  1860,  §  4G10. 

3  State  V.  Keid,  20  Iowa,  413. 


CH.  XXVI.]  OBJECTIONS  TO  GRAND  JURORS.  587 


CHAPTER  XXVI. 


OF  OBJECTIONS  TO  GRAND  JURORS. 


Article  I. — By  Challenge. 

II. — By  Plea  in  Abatement. 
III.— By  Motion  to  Quash. 
IV. — Objections  when  made. 
v.— Objections  to  the  Panel. 
VI. — Objections  to  the  Polls. 


ARTICLE  I.— By  Challenge. 

section. 

507.  No  Case  showing  Exercise  at  Common  Law. 

508.  Opinion  of  Serjeant  Hawkins  in  Favor  of  the  Right. 

509.  This  View  repudiated. 

510.  Plea  in  Abatement  a  Statutory  Substitute  for  the  Right. 

511.  Serjeant  Hawkins'  View  adopted  by  certain  American  Courts. 

512.  AVitli  Doubts  as  to  Cliallenge  to  tlie  Favor.  -» 

513.  No  Allowance  of  the  Peremptory  Challenge. 

514.  No  Challenges  permitted  by  certain  Courts. 

515.  Wlio  may  Challenge. 

516.  Right  of  Challenge  to  tlie  Array  as  guaranteed  bj^  Statute. 

(1.)  In  General. 

(2.)  Causes  Personal  to  the  Summoning  Officer. 
(3.)    Causes   affecting   the  Regularity  of   the  Drawing  or 
Summoning. 

517.  The  Right  of  Challenge  to  the  Poll  as  guaranteed  by  Statute. 

518.  Challenges  prohibited  by  Statute. 

.519.  Statutory  Causes  of  Challenge  Exclusive. 

520.  The  Statutes  silent  as  to  the  Right. 

521.  Trial  of  Challenges  —  Grand  Jurors  not  sworn  on  the  Voir  Dire 

522.  Effect  of  Allowance  of  Challenge  to  Panel  or  to  Poll. 

523.  Denial  of  Statutory  Right  of  Challenge  vitiates  Indictment. 


588  OBJECTIONS  TO  GRAND  JURORS.  [CH.  XXVI. 

§  507.  No  Case   sliowina"  Exercise   at  Coininon  Law. — 

The  reports  show  no  iiuthontic  instance  of  a  challenge  al- 
lowed to  grand  jurors,  either  individually  or  to  the  array, 
at  common  law.^ 

§  508.  Opinion  of  Serjeant  Hawkins  in  Favor  of  the 
Right. —  It  is  true  that  a  passage  in  Hawkins'  Pleas  of  the 
Crown  gives  some  support  to  the  view  that  the  right  existed, 
although  no  instance  of  its  exercise  is  there  noted.  "  It 
seetns,^'  says  this  learned  writer,  "  that  any  one  who  is 
under  a  prosecution  for  any  crime  whatsoever,  may,  by  the 
common  law,  before  he  is  indicted,  challenge  any  of  the 
persons  returned  on  the  grand  jury,  as  being  outlawed  for 
felony,  etc.,  or  villeins,  or  returned  at  the  instance  of  the 
prosecutor,  or  not  returned  by  the  proper  officer"  ^ 

§  509.  This  View  Repudiated. —  The  question  was  for 
the  first  time  fully  discussed  in  1811,  in  the  case  of  Sheri- 
dan, tried  before  the  Court  of  King's  Bench  in  Ireland,^ 
where,  after  exhaustive  arguments,  the  court  refused  to 
allow  the  right  of  challenge,  holding  that  it  was  justified 
neither  by  principle  nor  by  authority.*  Of  the  quotation  from 
Hawkins,  Mr.  Justice  Osborne  observed:  "It  appears  to 
me  that  the  passages  in  Hawkins,  in  this  particular,  are  not 
to  be  relied  upon  as  authority  at  all  ;  because,  when  we  ex- 
amine the  several  sections,  or  paragraphs  in  his  book,  we 
see  painted,  as  it  were,  the  countenance  of  a  man  in  doubt. 
.That  part  of  his  book  is  a  discussion  upon  a  controverted 
or  uncertain  point,  rather  than  the  opinion  of  a  juridical 
author."  5 

§    510.    Plea  in  Abatement  a  Statutory  Substitute  for 

the  Right. —  The  potent  reason  for  reaching  this  conclusion 

'  See,  however,  Lewis'  Case,  7  How.  St.  Tr.  2t9.  This  report  is  very 
obscure,  but  it  appears  that  certain  grand  jurors  were  set  aside  upon 
tlie  objection  of  the  crown  officer  tliat  they  were  likely  to  befriend  a 
person  whose  case  was  to  be  brought  before  them. 

2  2  Hawk.  P.  C,  0.  25,  §  16.  To  the  same  effect  see  Bacon's  Abr. 
Juries,  A.  and  1  Chit.  C.  L.  309.  But  these  opinions  are  merely  echoes 
■of  that  of  Hawkins. 

3  31  How.  St.  Tr.  543. 

*  Mr.  Justice  Day  dissented. 

5  31  How.  St.  Tr.  567.     See  also  Joy  on  Challenges,  122. 


§   512.]  BY  CHALLENGE.  589 

is  found  in  the  fact  that  the  hiw  early  provided  another  rem- 
edy for  excepting  to  the  competency  and  regularity  of  the 
summoning  of  grand  jurors.^  Concurrent  remedies  by  chal- 
lenge and  plea  the  law  did  not  tolerate,  for  the  obvious 
reason  that  otherwise  those  who  were  aware  that  their  con- 
duct was  to  be  the  subject  of  investigation  by  the  grand 
jury  would  enjoy  an  advantage  over  others  indicted  without 
such  previous  knowledge, 

§  511.  Serjeant  Hawkins'  View  Adopted  by  certain 
Aniei'ican  Courts. —  However,  it  is  not  uncommon  to  meet 
with  decisions  of  our  courts  holding  that  the  right  of  chal- 
lenge, both  to  individual  grand  jurors'^  and  to  the  array, ^ 
existed  at  common  law. 

§  512.  With  Doubts  as  to  Challenge  to  the  Favor. — 
This  right  was  claimed  and  exercised  without  opposition  in 
the  proceedings  against  Aaron  Burr,*  which  case  is  probably 
the  first  instance  of  the  kind  in  this  country.  Subsequently 
it  was  conceded  by  other  courts,^  but  this  view  is  not  enter- 
tained by  all.  Thus,  Hovey,  J.,  delivering  the  opinion  of 
the  Supreme  Court  of  Connecticut  in  a  late  case,  said  r 
"  The  statutes  contain  no  provision  for  challenging  jurors  ; 
and  we  believe  that  no  grand  juror  was  ever  challenged  for 
favor  in  the  courts  of  this  State."*'  In  a  case  tried  by  a 
distinguished  Federal  judge,  the  court  was  of  opinion  that 
the  disqualification  for  which  a  challenge  would  be  allowed 

^Post,^  528, 

2  United  States  v.  Williams,  1  Dill.  485,  492;  Vattier  v.  State,  4  Blackf. 
73;  McQiiilleiiv.  State,  8  Sra.  &  M.  597;  Kitrol  v.  State,  9  Fla.  13;  Thayer 
V.  People.  2  Doug.  417;  Joues  v.  State,  2  Blackf.  475;  Musick  v.  People, 
40  111.  268. 

3  United  States  v  Blodgett,  35  Ga.  340;  State  v.  McNamarra,  3  Nev, 
70;  Stone  v.  People,  3  111.  326;  Cody  v.  State,  3  How.  (Miss.)  27;  Musick 
V.  People,  40  111.  268.  In  People  v.  Jewett,  3  Wend.  314,  a  challenge  to 
the  array  was  taken,  discussed  and  not  allowed  upon  the  grounds  al- 
leged, without  argument  as  to  the  right  to  interpose  it. 

*  Burr's  Trial,  pp.  38,  44. 

^  Com.  V.  Clark,  2  Bro.  (Penn.)  323;  People  v.  Jewett,  3  Wend.  314. 
323;  State  v.  Rickey,  10  N.  J.  L.  83,  86;  United  States  v.  White, 
5  Cranch  C.  C.  457,  459.  These  last  three  authorities  are  obiter  dicta 
only. 

^  State  V.  Hamlin,  47  Conn.  95. 


590  OB.TECTIOXS  TO  GRAND  JURORS.  [CH.  XXVI. 

must  1)C  such  as  is  prououaced  by  statute,  and  which  abso- 
lutely disqualifies,  such  as  alienage,  non-residence,  want  of 
freehold  qualification,  where  that  is  required,  etc.,  and 
which  would  constitute  cause  of  principal  challenge  as  dis- 
tinguished from  challenge  to  the  favor,  arising  from  bias, 
interest  and  the  like.^ 

§  513.  No  Allowance  of  the  Peremptory  Clialleiige. — 
If  it  is  to  be  conceded  that  the  right  of  challenging  grand 
jurors  existed  at  common  law,  it  would  seem  clear  that 
consistency  requires  that  this  right  should  embrace  all 
kinds  of  challenge,  namely:  to  the  array,  for  cause,  and 
l^eremptory.  Perhaps  the  best  evidence  that  a  challenge  of 
any  sort  to  grand  jurors  is  anomalous,  is  found  in  the  fact 
that  no  court  was  ever  sufficiently  bold  to  allow  peremptory 
challenges  to  grand  jurors.  The  early  Indiana  court,  which 
conceded  the  right  of  challenge  for  cause,  denied  that  of 
peremptory  challenge.^ 

§  514.  Xo  Challenges  permitted  by  certain  Courts. — 
The  precedent  established  in  the  case  of  Aaron  Burr  was 
early  regarded  by  the  Massachusetts  court  as  solitary.  On 
one  occasion  it  was  suggested  by  an  attorney  as  amicus 
curiae,  that  the  case  of  one  charged  with  murder  was  about 
to  be  taken  under  consideration  by  the  grand  jury,  upon 
which  was  a  neighbor  of  the  accused,  and  one  who  had 
originated  the  complaint  against  him,  and  had  most 
probably  formed  an  opinion  of  his  guilt.  The  court  de- 
clined to  entertain  the  objection,  saying  that  such  a  prac- 
tice would  greatly  impede  public  justice.  At  the  same 
time  it  was  said  that  if  any  individual  juror  should  be 
sensible  of  such  a  bias  upon  his  mind  that  he  could  not 
give  an  impartial  opinion,  "  such  juror  would  feel  it  his 
duty,  as  it  would  be  his  right,  to  withdraw  himself  from 
the  chamber  while  the  discussion  continued."  ^    Later,  how- 


^  United  States  v.  William>.  1  Dill.  485,  492.     Contra,  United  States  v. 
Reed,  2  Blatch.  435. 
2  .Jones  V.  State,  2  B'ackf .  475. 
a  Tucker's  Case,  S  Mass.  286. 


§   514.]  BY  CHALLENGE.  591 

ever,  the  same  court  considered  that  "  objections  to  the 
personal  qualifications  of  the  jurors,  or  to  the  legality  of 
the  returns,  are  to  be  made  before  the  indictment  is  found  ; 
and  may  be  received  from  any  person,  who  is  under  a  pre- 
sentment for  any  crime  whatsoever,  or  from  any  person 
present,  Avho  ma}'-  make  the  suggestion  as  amicus  curice.''  ^ 
But  this  concession  does  not  seem  to  be  regarded  as  in- 
cludino-  the  rio;ht  of  challenofe.^ 

The  practice  of  challenging  either  the  array  or  the  polls 
of  the  grand  jury  has  never  obtained  in  North  Carolina. 
Objections  which  are  usually  made  under  these  forms  of 
challenge  are  in  that  State  made  by  plea  in  abatement  upon 
arraignment.^     In  New  Jersey  the  practice  was  early  disap- 
proved.    "If  the  mode  by  challenge  is  to  be  adopted," 
said  KiNSEY,  C.  J.,  *'  it  must  necessarily  result  that,  nine 
times  out  of  ten,  the  benefit  of  a  statute,  which  provides  a 
security  for  our  lives,  fortunes,  and  reputation,  by  requir- 
ing that  an  indictment  shall  always  be  presented  by  jurors, 
respectable    for   their    character    and    standing    in  society, 
shall  be  absolutely  lost  to  the  accused,  without  any  actual 
neglect  or  fault  of  his  own.     It  frequently  occurs,  that  the 
accused  is  altogether  ignorant  of  the  complaint  when  the 
grand  jury  is  called  :  if  he  should  chance  to  be  present,  he 
cannot  be  assured  that  the  prosecution  will  proceed  ;  and, 
at  any  rate,  it   would  be   most  extraordinary   for   him  to 
make  his  challenges  when  there  is  no  certainty  that  his  case 
will    come    under  their    cognizance.     In   most   cases    of    a 
capital  nature,  the  person  charged  with  the  offense  is  ac- 
tually in  confinement,  and  has  not  the  physical  capacity  to 
make   his    challenges :  he  is    never    brought   up  and  con- 
fronted with  the  grand  jurors  ;  nor  is  he  served  with  a  list 
of  the  persons  who  are  to  compose  it.    Thus  circumstanced, 
it  would  be  worse  than  a  form — it  would  be  a  mockery  of 
law  and  justice,  to  compel  him^to^  avail  himself  of  excep- 

1  Com.  V.  Smith,  9  Mass.  107. 

^  Turns  v.  Com.,  6  Mete.  224,  234. 

3  State  V.  Grimce,  74  N.  C.  316. 


592  OBJECTIONS  TO  GRAND  JURORS.  [CH.  XXVI. 

tions  of  this  kind,  or  to  be  considered  as  forever  waiving 
every  error  in  the  proceedings  of  the  sheriff,"  ' 

§  515.  Who  may  Cliallong^o. —  Those  courts  which  con- 
cede the  right  of  challenge  to  grand  jurors,  for  the  most 
part,  limit  the  exercise  of  the  right  to  persons  under  pros- 
ecution for  crime  ;  in  other  words,  those  held  to  answer,  or 
who  have  entered  into  a  recognizance  to  appear  for  this, 
purpose.'^  However,  it  has  been  held  that  it  is  not  essential 
to  the  right  of  challenge  that  the  challenger  should  be  in 
l)rison,  or  out  upon  bail,  even  ;  it  is  enough,  if  one  has  been 
warned  by  the  officer  of  the  government  that  he  intends  to 
prosecute  him  before  a  particular  term  of  court,  at  which 
time  the  person  affected  appears  and  demands  the  right  of 
making  his  challenges.^ 

§  516.  The  Right  of  Challenge  to  Array  as  giiaraiiteed 
by  Statute. — (1.)  In  General. —  The  uncertainty  in  which 
the  right  of  challenge  to  grand  jurors  is  involved,  is  dispelled 
in  many  States  b}'  statutes  particularly  defining  for  what 
causes  challenges  may  be  taken.  Thus,  the  laws  of  some 
of  the  States  and  Territories  provide  that  the  array  or  panel 
may  be  challenged.*  Generally,  this  right  is  limited  to  per- 
sons held  or  bound  to  answer  ;  but  the  Texas  Code  of  Crim- 
inal Procedure  secures  the  right  to  "  any  person."  ''  The 
statutes  of  California,  Nevada,  and  the  territory  of  Utah 
concede  this  right  to  the  government,  as  well  as  the  ac- 
cused.^    In  Colorado  there  seems  to  be  the  same  right  of 

1  State  V.  Rockiifellow.  6  N.  J.  L.  332,  340. 

2  Hudson  V.  State,  1  Blackf.  317;  Ross  v.  State,  1  Blackf.  300;  Mer- 
shon  V.  State,  51  Intl.  14:  Com.  v.  Clark,  2  Bro.  (Pa.)  323:  Tliayer  v. 
People,  2  Doug.  417. 

3  United  States  v.  Blodgett,  35  Ga.33G. 

4Comp.  Laws  Ariz.  1877,  §  574;  Cal.  Penal  Code,  §  894;  Gen.  Laws- 
Colo.  1877,  §  474;  Miller's  K.  C.  Iowa,  1880,  §  4258;  2  Stat,  at  Large, 
Minn.  187,  p.  104,  §  88;  Gen.  Laws  New  Mexico,  1880.  p.  3G9,  §  3; 
Comp.  L.  Nev.  1873,  §  1806;  R.  S.  Ohio.  1880,  §  5175;  Texas  Code  Cr. 
Proc.  1S79.  Art.  376:    Laws  Utah,  1878,  §  118;  2  Stat.  Ind.  1876,  p.  419. 

§11- 

«  Art.  376. 

6  Cal.  Penal  Code,  §  894;  Conip.  L.  Xev.  1873,  §  ISOG;  Laws  Utah 
(Code  Cr.  Proc).  1878.  §  118. 


^516.]  BY  CHALLENGE.  593 

-challenge  to  the  panel  and  polls  of  grand  juries  as  in  the 
case  of  petit  juries.^ 

(2.)  Causes  Personal  to  the  Summoning  Officer. —  The 
statutes  before  noticed  provide  that  the  panel  may  be  chal- 
lenged, if  the  officer  who  summoned  it  is  the  actual  prosecutor 
or  the  party  aggrieved  ;  ^  if  the  summoning  officer  be  of  ac- 
tual affinity  to  the  prosecutor  or  to  the  defendant ;  ^  if  he 
acts  corruptly,  and  with  a  view  to  the  favor  or  injury  of  the 
prosecutor  or  defendant  in  selecting  and  summoning ;  ^  if 
he  return  any  person  upon  the  panel  at  the  request  of  the 
prosecutor  or  defendant.^ 

(3.)  Causes  affecting  the  Regularity  of  the  Drawing  or 
Summoning. —  Of  this  character  are  the  following :  That 
•notice  of  the  drawing  of  the  grand  jury  was  not  given ;  ^ 
that  the  drawing  was  not  had  a  specified  number  of  days 
before  the  holding  of  the  court ;  ^  that  the  drawing  was  not 
had  in  the  presence  of  the  officers  designated  by  law  f  that 
the  requisite  number  of  ballots  was  not  drawn  from  the 
jury  box  of  the  county ;  ^  that  the  jurors  were  not  ap- 
pointed, drawn  or  summoned  as  prescribed  by  lavv  ;  ^^  that 
the  persons  summoned  as  grand  jurors  were  not,  in  fact, 
the  persons  selected  by  the  jury  commissioners  to  be  sum- 
moned." The  New  York  Code  of  Criminal  Procedure  of 
1881,  abolishes  the  challenge  to  the  array  of  the  grand  jury, 
but  the  same  section  provides  that  the  court  may,  in  its  dis- 
cretion, at  any  time  discharge  the  panel,  or  order  another 

J  Gen.  Laws  Colo.  1877,  §  1474. 

2  Oomp.  Laws  Ariz.  1877,  §  575. 

3  Comp.  Laws  Ariz.  1877,  §  575. 

*  Comp.  Laws  Ariz.  1877,  §  575;    Texas  Code  Cr.  Proc.  1879,  Art.  380. 

*  Comp.  Laws  Ariz.  1877,  §  575. 

«  Cal.  Penal  Code,  §  895;    Comp.  Laws  Nev.  1873,  §  180;  Laws  Utah, 
1878  (Code  Cr.  Proc),  §119, 
'  2  Stat,  at  Large  Minn.  1873,  p.  1034,  §  89. 

»  Cal.  Penal  Code,  §  895;  2  Stat,  at  Large  Minn.  1873,  §  1807:    Comp. 
L.  Nev.  1873,  §  1807;  Laws  Utah,  1878,  §  119. 

9  Cal.  Penal  Code,   895;  «2  Stat,  at  Large,  Minn.  1873,  p.  1034,  §  89; 
Comp.  L.  Nev.  1873,  §  1807;  Laws  Utah,  1878,  §  119. 
^0  Miller's  R.  C.  Iowa,  1880,  §  4260;  R.  S.  Ohio,  1880,  §  5175. 
^1  Texas  Code  Cr,  Proc,  1879,  Art.  380. 

(38) 


594  OBJECTIONS  TO  GRAND  JURORS.  [CH.  XXVI. 

to  be  summoned  for  one  or  more  of  the  tirst  four  causes- 
which  we  have  just  mentioned.^ 

§  517.  The  Right  of  Chtillonge  to  the  Poll  as  guaran- 
teed by  Statute. —  The  statutes  of  some  States  also  grant 
to  one  held  or  bound  to  answer  the  right  to  challenge  in- 
dividual grand  jurors.  In  several  States  the  prosecution 
has  the  same  right.'  This  is  allowed  upon  the  following 
grounds  :  that  the  juror  is  a  minor  i'"^  that  he  is  insane  ;*  that 
he  is  an  alien  ;*  that  he  is  not  a  qualified  juror  as  required 
by  law  ;^  that  he  is  the  prosecutor  against  the  defendant ; ' 
that  he  is  a  witness  on  the  part  of  the  prosecution,  and  has 
been  summoned  or  bound  in  a  recognizance  as  such  ;  ^  that 

i  Section  238. 

2  See  Miller's  R.  C.  Iowa,  1880,  §  4258;  Cal.  Penal  Code  §  894;  Comp.. 
L.  Nev.  1873,  §  1806;  Texas  Code  Cr.  Proe.  1879,  Art.  376;  Laws  Utah,. 
1878,  (Code  Cr.  Proc.)  §  118. 

8  Comp.  L.  Ariz.  1877,  §  576;  Cal.  Penal  Code,  §  896;  Miller's  R.  C. 
Iowa,  1880,  §  4261;  2  Stat,  at  Laroje,  Minn.  1873,  p.  1034,  §  90;  Comp.  L. 
Nev.  1873,  §  1808;  Gen.  Laws  New  Mexico,  1880,  p.  367,  §  5;  New  York 
Code  Crim.  Proc.  1881,  §  239. 

*  Comp.  L.  Ariz.  1877,  §  576;  Cal.  Penal  Code,  §  896;  Miller's  R.  C. 
Iowa,  1880,  §  4261;  2  Stat,  at  Large,  Minn.  1873,  p.  1034,  §  90;  Comp.  L. 
Nev.  1873,  §  1808;  Gen.  Laws  New  Mexico,  1880,  p.  367,  §  5;  New  York 
Code  Crim.  Proc.  1881.  §  239. 

5  Comp.  L.  Ariz.  1877,  §  576;  Cal.  Penal  Code,  §  896;  2  Minn.  Stat,  at 
Large,  1873,  p.  1034,  §  90;  Comp.  L.  Nev.  1873.  §  1808;  Gen.  Laws  New 
Mexico,  1880,  p.  367,  §  5;  New  York  Code  Crim.  Proc.  1881,  §  239. 

6  R.  S.  Mo.  1879,  §  2787;  Rev.  N.  J.  1877,  p.  532,  §  6;  Texas  Code  Cr. 
Proc.  1879,  Art.  381;  Laws  Utah,  1878,  §  120. 

7  Comp.  L.  Ariz.  1877,  §  576;  Cal.  Penal  Code,  §  896;  Ark.  Dig.  Stat. 
1874,  §  1773;  Miller's  R.  C.  Iowa,  1880,  §  4261;  Comp.  L.  Kan.  1879, 
§4569;  Comp.  L.  Mich.  1871,  §  7885;  2  Stat,  at  Large,  Minn.  1873,  p. 
1034,  §  90;  R.  S.  Mo.  1879,  §  1772;  Comp.  L.  Nev.  1873,  §  1808;  Gen. 
Laws  New  Mexico,  1880, -p.  367,  §  5;  Texas  Code  Cr.  Proc.  1879,  Art. 
381;  Laws  Utah,  1878,  §  120;  R.  S.  Wis.  1878,  §  2548;  New  York  Code 
Crim.  Proc.  1881,  §  239.  See  also  Code  Ala.  1876,  §  4771;  Stat.  Tenn. 
1871,  §  5086.  These  statutes  do  not  impair  the  right  of  the  grand  juiy 
to  make  a  presentment.  The  statutes  of  tlie  States  and  Territories 
here  noticed  quite  generallj^  provide  that  a  grand  juror  shall  not  be 
questioned  for  his  acts  as  such,  '*  except  for  a  perjury,  of  which  he  may 
be  guilty  in  making  an  accusation  or  giving  testimony  to  his  fellow 
jurors." 

8  Comp.  L.  Ariz.  1877,  §  576;  Cal.  Penal  Code  §  896;  Ark.  Dig.  Stat. 
1874,  §  1773;  Comp.  L.  Kan.  1879,  §  4569;  2  Stat,  at  Large,  Minn.  1873^ 


§   518.]  BY  CHALLENGE.  595 

he  is  related  by  consanguinity  or  affinity  to  some  person 
held  to  bail  or  in  custody  upon  a  criminal  accusation  ;  ^  that 
he  has  served  as  a  grand  or  petit  juror  within  two  years 
next  preceding ;  ^  that  he  has  formed  or  expressed  a  de- 
cided opinion  that  the  defendant  is  guilty  of  the  offense  for 
which  he  is  held  to  answer.^ 

The  foregoing  will  be  recognized  as  principal  causes  of 
challenge.  The  statutes  of  New  York,  California,  Minne- 
sota and  New  Mexico  further  provide  that  a  challenge  may 
be  taken  to  the  individual  grand  juror  for  favor.  The 
ground  of  this  challeno;e  is  stated  to  be  "that  a  state  of 
mind  exists  on  his  part  in  reference  to  the  case,  or  to  either 
party,  which  satisfies  the  court,  in  the  exercise  of  a  sound 
discretion,  that  he  cannot  act  impartially  and  without  preju- 
dice to  the  substantial  rights  of  the  party  challenging."  * 

§  518.  Challenges  prohibited  hy  Statvite. —  In  some  of 
the  States,  to  remove  all  doubt  as  to  the  intention  of  the 
legislature  in  conferring  the  right  of  challenge  in  certain 
cases,  it  is  expressly  disallowed  in  others.  Thus  in  New 
York,^  Michigan,*'  Missouri,^  Kansas,^  and  Oregon,^  no  chal- 
lenge  to  the   array  of  grand  jurors,  for  any  cause,  can  be 


p.  1034,  §  90;  R.  S.  Mo.  1879,  §  1772;  Gen.  Laws  New  Mexico,  1880,  p. 
367,  §  5;  Laws  Utah,  1878,  §  120;  R.  S.  Wis.  1878,  §  2548;  New  York 
Code  Crim.  Proc.  1881,  §  239. 

1  Texas  Code  Cr.  Proc.  1879,  Art.  381.  See  also.  Code  Ala.  1876. 
§  4771 ;  Stat.  Teuii.  1871,  §  5086. 

2  Laws  Utah,  1878,  (Code  Cr.  Proc.)  §  120. 

3  Comp.  L.  Ariz.  1877,  §  576;  Cal.  Penal  Code,  §  896;  Miller's  R.  C. 
Iowa,  1880,  §  4261 ;  Laws  Utah,  1878,  §  120. 

<]Srew  York  Code  Crim.  Proc.  1881.  §  239;  Cal.  Penal  Code,  §  896;  2 
Stat,  at  Large,  Minn.  1873.  p.  1035,  §  90;  Gen.  Laws  New  Mexico,  1880, 
p.  367,  §  5. 

5  2  Rev.  Stat.  N.  Y.  §§  27  and  28;  New  York  Code  Crim.  Proc.  1881, 
§  238.     See  Carpenter  v.  People,  64  N.  Y.  483. 

«  Comp.  L.  Mich.  1871,  §  7885. 

^  Rev.  Stat.  Mo.  1835,  p.  479,  §  3;  Rev.  Stat.  Mo.  1845,  p.  863,  §  3;  Rev. 
Stat.  Mo.  1879,  §  1773.  See  State  v.  Bleekley,  18  Mo.  428;  State  v. 
Welch,  33  Mo.  33. 

«  Comp.  L.  Kan.  1879,  §  4570. 

9  Gen.  Laws.  Oreg.  1872,  p.  345,  §  35;  State  v.  Fitzhugh,  2  Oreg.  227. 


596  OBJECTIONS  TO  GRAND  JURORS.  [cii.  XXVI. 

interposed,  cither  by  the  State  or  by  one  held  to  answer.' 
However,  it  by  no  means  follows  that  the  accused  has  no 
remedy,  in  a  case  where  he  has  been  prejudiced  by  improper 
conduct  on  the  part  of  the  officers  whose  duty  it  is  to  make 
the  general  list  of  jurors,  and  to  draw  and  summon  the  panel. 
*'If  there  has  been  any  improper  conduct,"  said  Nelson, 
,].,  "on  the  part  of  those  officers  in  performing  that  ser- 
vice, or  if  any  fraud  has  been  committed  through  their  in- 
strumentality, in  the  drawing,  summoning  or  organization 
of  the  grand  jury,  of  course,  the  accused  who  may  be 
prejudiced  thereby  has  his  remedy,  by  motion  to  the  court 
for  relief  in  consequence  of  such  irregularity  or  fraud  ; 
because  the  selecting,  summoning  and  returning  of  grand 
jurors  are  proceedings  which  are  always  under  the  general 
supervision  and  control  of  the  court ;  and  the  court  will 
guard  them,  and  will  see  to  it  that  no  one  shall  be  preju- 
diced thereby.  The  court  has  general  power  to  preserve 
the  pure  administration  of  justice,  and  its  sound  discretion 
will  always  be  exercised  freely  for  the  purpose  of  securing 
that  end."  2 

In  Oregon,  no  challenge  can  be  made  to  the  individual 
grand  juror.  However,  before  accepting  a  grand  juror,  it 
is  the  duty  of  the  court  to  satisf}'  itself  that  he  is  duly 
qualified  to  act.^     This  duty  is  enjoined  in  other  States.* 

§  519.  Statutory  Causes  of  Cliallenge  Exclusive. —  In 
view  of  the  fact  that  the  right  of  challenge  either  to  the 
array  or  to  the  poll  did  not  exist  at  common  law  on  the 
part  of  the  prosecution  or  the  accused,  it  plainly  follows 

^  An  act  of  the  legislature  is  constitutional  which  provides  that  per- 
sons sunuTioned  as  grand  jurors,  who  are  of  the  class  of  citizens  qualified 
by  law  to  serve  as  such,  may  constitute  a  lawful  grand  jury,  ■'notwith- 
standing any  irregularity  in  any  writ  of  t-enire  facias,  or  in  the  drawing, 
summoning,  returning  and  impanelling  of  said  grand  jurors.*'  Com.  v. 
Brown,  121  Mass.  69. 

2  United  States  v.  Reed,  2  BUitch.  •llJo,  449;  United  States  v.  Tallman, 
30  Blatch.  21. 

3  Gen.  Laws  Oreg.  1872,  §§  34  and  35. 

*  R.  C.  Miss.  1880,  §  16G7;  Code  Ala.  1876,  §  4760;  Tex.  Code  Cr.  Troc. 
1879,  Art.  .^72. 


§   521.]  15 Y  CHALLENGE.  5 J) 7 

that  challenges  can  be  taken  only  for  causes  specified  in  the 
statutes^  and  b}^  the  persons  therein  named,-'  and  the  stat- 
utes of  some  States  expressly  so  provide.'^ 

Grave  objections  may  arise  to  the  constitution  of  the 
panel  from  other  causes.  These  may  be  suggested  to  the 
court  upon  a  motion  to  strike  an  indictment  found  by  this 
body  from  the  files.  In  such  a  case  the  court  should  keep 
clearly  in  view  the  distinction  l)etween  the  acts  of  a  body 
having  no  seml)lancc  of  authority  to  act  at  all,  and  of  a 
body  which,  though  not  strictly  regular  in  its  organization, 
is,  nevertheless,  acting  under  color  of  authority.  It  is  not 
every  slight  irregularity  which  may  occur  in  the  formation 
of  a  grand  jury  which  would  justify  the  court  in  striking 
the  indictment  from  the  files  as  a  nullity  ;  otherwise  there 
would  be  no  need  of  a  challenge  to  the  panel,  since  all  ob- 
jections to  the  grand  jury  could  be  taken  on  a  motion  to 
strike  the  indictment  from  the  files.* 

§  520.  The  Statutes  silent  as  to  the  Right. —  Where  the 
statutes  confer  no  rights  in  this  respect,  it  would  seem 
clear  that  none  exist ;  and  such  is  believed  to  be  the  case  in 
Alabama,  Connecticut,  Delaware,  Florida,  Georgia,  Illinois, 
Kentuck}^  Louisiana,  Maine,  Maryland,  Massachusetts, 
Nebraska,  New  Hampshire,  North  Carolina,  Pennsylvania, 
Rhode  Island,  South  Carolina  and  Tennessee. 

§  521.  Trial  of  Challcitiges  —  Grand  Jm-ors  not  Sworn 
on  the  Voir  Dire. —  Under  some  of  the  foregoing  statutes, 
all  challenges,  both  to  the  panel  and  to  the  polls,  are  tried  by 
the  court.'*     In  others,  only  certain  specified  challenges  are  to 

'  State  V.  Felti-r,  i.")  lowii,  (37;  State  v.  Millaiii,  3  Xev.  409. 

2  State  V.  Davis,  22  ]\[iiiii.  423;  Keitler  v.  State,  4  G.  Greene,  291. 

3  R.  S.  Mo.  1879,  §  1773;  Conip.  L.  Xev.  1873,  §  1814;  Kev.  N.  J.  1877, 
p.  532,  §  G;  Texas  Code  Cr.  Proc.  1879,  Arts.  380,381.  See  Keed  v. 
State,  1  Tex.  Apj).  1;  (ireeii  v.  State,  1  Tex.  App.  82;  Thomason  v. 
State,  2  Tex.  App.  :);")();  Stale  v.  Vahl,  20  Tex.  779;  State  v.  Welch,  33 
Mo.  33. 

*  People  v.  Southwell,  4(j  Cal.  141. 

5  Conip.  L.  Ariz.  1877,  §  577;  Cal.  Penal  Code,  §  898;  Miller's  R.  C. 
Iowa,  1880.  §  4202;  Texas  Code  Cr.  Proc.  1879.  Art.  382;  Xcw  York 
Code  Crim.  Proe.  is;81,  §  240. 


5*J{S  OIUECTIONS  TO  (iKAM)  JLKOKS.  [CH.  XXVI. 

be  tried  l)y  the  court. ^  In  Colorado  tlie  challenges  may  be 
tried  by  the  court,  or  by  triors  appointed  as  the  court  shall 
direct.' 

In  view  of  the  fact  that  grand  jurors  are  not  sworn  in 
any  particular  case,  but  to  investigate  offences  in  general, 
it  is  clear  that,  upon  the  impanelling  of  the  grand  jury,  the 
court  ought  not  to  grant  the  a[)plication  of  any  person 
whose  conduct  is  to  be  a  subject  of  investigation  by  the 
grand  jury,  that  any  one  or  more  of  the  grand  jurors  in  at- 
tendance be  sworn  upon  the  voir  dire  with  a  view  to  ex- 
amining him  for  causes  of  challenge.  Such  an  apj)lication, 
if  granted  to  one  person,  must  be  granted  to  all.  The  re- 
sult would  be  that  the  process  of  imi)anelling  would  be  al- 
most interminable.  In  such  a  case  the  Supreme  Court  of 
Pennsylvania  said:  "A  due  regard  for  })ublic  policy,  as 
well  as  for  the  interests  of  justice  and  the  nature  of  the 
inquiry,  forbids  that  grand  jurors  should  be  polled  and  tried 
in  this  manner.  If  the  prisoner  have  evidence  to  purge  the 
panel,  let  him  produce  it."^ 

§  522.  Effect  of  AlloAvaiue  of  Challenge  to  Panel  or  to 
Poll. —  The  statutes  in  the  previous  sections  generally  pro- 
vide that  the  allowance  of  a  challenge  to  the  panel  will  pro- 
hibit the  grand  jury  from  incjuiring  into  an}'  charge  against 
the  person  by  whom  it  is  interposed.  If  the  jury  proceed 
with  the  inquiry  and  lind  an  indictment,  it  must  be  set 
aside  If  a  challenge  to  an  individual  i^rand  juror  be  al- 
lowed,  he  cannot  be  permitted  to  be  present  at,  or  take  any 
part  in  the  consideration  of  the  charge  against  the  chal- 
lenger. A  violation  of  this  piovision  will  subject  the  juror 
to  punishment  for  contempt. 

§  523.  Denial  of  Statutory  Kiglit  of  Challenge  vitiates 
Indictment. —  The  right  of  challenging  either  the  panel  or 
the  polls  of  a  grand  jury,  when  guaranteed  by  statute,  is  a 

12  Stat,  at  Large.  Minn.  1873.  p.  l(«r),  Jj  91;  Comii.  I>.  Niv.  1S7:5. 
§1809;  Gen.  I>a\vs  Now  Mexico.  ISSO.  p.  :?(;S.  )j  C:  Laws  L'lati.  187S, 
§  12L 

2  Geu.  Laws  Colo.  1877.  §  1474. 

3  Brown  v.  Com..  7(>  Pa.  St.  ;511),  'XM. 


§  527.]  BY  PLEA  IN  ABATEMENT.  599 

substantial  rijiht  of  which  the  accused   cannot  be  deprived, 
without  vitiatinii"  the  indictment.^ 


ARTICLE   I[. 


BY    PLEA    IN    ABATEMENT. 
SECTION. 

527.  Necessity  for  at  Common  Law. 

528.  This  Want  suppplied  by  Stat.  ll^Hen.  IV.,  c.  9. 

529.  Whetlier  this  Statute  is  in  Affirmance  only  of  the  Common  Law. 
-530.  Held  to  be  so  by  some  American  Courts. 

531.    But  denied  by  others. 

(L)  In  Massachusetts. 

(2.)  In^IewYork. 

(3.)  In  North  Carolina. 

(4.)  In  Alabama. 
-532.     Confusion  the  Con.- jquence. 

533.  What  may  be  shown  by  Plea  in  Abatement. 

534.  The  Plea  in  Abatement  not  favored. 

535.  Therefore  it  must  be  strictly  pleaded. 

-536.    Its  Functions  as  a  Substitute  for  Challenge  to  the  Array  impaired 

or  abolished  by  Statute. 

(1.)  In  Mississippi. 

(2.)  In  Louisiana. 

(3.)  In  Indiann  and  Kansas. 

(4.)  In  Texas. 

(5.)  In  Alabama. 

(6.)  In  Missouri. 
T)37.     No  longer  a  Substitute  for  Challenges  to  the  Polls. 
538.    Objections  suggested  by  Amicus  Curiae. 

§  527.  Necessity  for  this  Form  of  Objection. —  When  it 
IS  considered  that  jurors,  l)oth  grand  and  petit,  were  sum- 
moned at  common  hiw  in  tlie  discretion  of  the  sheriff,^  and 
further,  that  the  right  of  challenging  the  array  or  the  polls 
■of  a  grand  jury  did  not  exist  at  common  law,^  it  becomes 

1  People  V.Romero,  18  Cal.  89;  Territory  v.  Ingersoll,  3  Mont.  454; 
People  v.  Winteimute,  1  Dak.  Terr.  63. 

2  Ante,  §§  44,  483. 

3  Atite,  §  507  et  scq. 


GOO  OBJECTIONS  TO  GRAND  JURORS.     [CH.  XXVI.. 

very  plain  that  the  .sheriff  possessed,  to  an  alarming  degree,, 
the  means  of  procuring  the  indictment  of  any  person  ob- 
noxious to  himself,  his  party,  or  to  the  crown,  by  sum- 
moning to  any  session  of  the  court  serviceable  person.s 
as  grand  jurors.  The  sheriff  seems  not  to  have  been  above 
frequent  temptation  in  this  connection.^  Or,  if  this  officer 
performed  his  duty  impartially,  a  convenient  means  of  fal- 
sifying his  return  was  found  in  the  corruptibility  of  depu- 
ties or  clerks.  Thus,  Lord  Coke  tells  us  how  that  "the 
sheriff  returned  a  grand  inquest,  of  which  one  Robert 
Scarlet,  in  the  county  of  Suffolk,  had  requested  to  be  one, 
but  the  sheriff,  knowing  the  malice  of  the  man,  refused  to 
return  him  ;  but  notwithstanding,  by  confederacy  with  the 
clerk  who  read  the  panel,  he  was  sworn  of  the  grand  in- 
quest, and  was  not  returned  by  the  sheriff ;  and  being 
amongst  them  of  the  grand  incjuest,  and  as  one  of  them, 
of  his  malice,  and  upon  his  own  knowledge,  as  he  pre- 
tended (to  whom  the  rest  gave  credit),  indicted  seven- 
teen honest  men,  upon  divers  penal  laws."  ^  The  fore- 
going is  an  instance  of  outrage  which  must  have  been 
of  frequent  occurrence  under  the  early  system  of  return- 
ing jurors.  To  correct  and  punish  these  enormities  the 
common  law  had  not,  it  seems,  adequate  means.  But  they 
were  furnished  in  generous  measure  by  a  statute  which  we 
will  now  consider. 

§  528.  TIii.s  Want  supplied  by  Stat.  11  Hen.  IV.,  c.  9. — 
This  celebrated  statute  not  only  relieved  the  condition  of 
those  suffering  at  the  time  of  its  passage  from  unjust  in- 
dictment, but  also  provided  against  the  recurrence  of  simihir 
mischief.  The  brevity  and  importance  of  this  statute  seem 
to  justify  its  incorporation  in  these  pages.  "  Because  that 
now  of  late  inquests  were  taken  at  Westminster  of  persons 
named  to  the  justices,  without  due  return  of  the  sheriif ,  of 
which  persons  some  were  outlawed  before  the  said  justices  of 
record,  and   some  fled  to  sanctuary  for  treason,  and  some 

1  See  the  preamble  of  Stat.  11  Hen.  IV.,  c.  9  and  note  in  the   next 
section. 
2 12  Coke  Kep.  98.     See  the  sanie  case  discussed  in  3  Co.  Inst.  33. 


§   528.]  BY  PLEA  IN  ABATEMENT.  ()01 

for  felony,  there  to  have  refuge,  by  whom  as  well  many  of- 
fenders were  indicted,  as  other  lawful  liege  people  of  our 
lord  the  king,  not  guilty,  by  conspiracy,  abettment,  and 
false  imagination  of  other  persons,  for  their  special  advan- 
tage and  singular  lucre,  against  the  course  of  the  common 
law  used  and  accustomed  before  this  time;  our  said  lord, 
the  king,  for  the  greater  ease  and  quietness  of  his  people,, 
will  and  granteth,  that  the  same  indictment  so  made,  witli 
all  the  dependence  thereof,  be  revoked,  ad  nulled,  void,  and 
holden  for  none  forever ;  and  that  from  henceforth  no  in- 
dictment be  made  by  any  such  persons  but  by  inquest 
of  the  king's  lawful  liege  people,  in  the.  manner  as 
was  used  in  the  time  of  his  noble  progenitors,  returned 
by  the  sheriffs  or  bailiffs  of  franchises,  without  any 
denomination  to  the  sheriffs  or  bailiffs  of  franchises  be- 
fore made,  by  any  person  of  the  names  which  by  him 
should  be  impanelled,  except  it  be  by  the  officers  of  the 
said  sheriffs  or  bailiffs  of  franchises,  sworn  and  known,  to 
make  the  same,  and  other  officers  to  whom  it  pertaineth  to 
make  the  same,  according  to  the  law  of  England.  And  if 
any  indictment  be  made  hereafter  in  any  point  to  the  con- 
trary, that  the  same  indictment  be  also  void,  revoked  and 
forever  holden  for  none."  ^ 

The  statute  was  in  a  marked  deo;ree  effective  in  correct- 
ing  the  evils  noticed  in  the  previous  section.  Thus,  in  the 
very  case  of  the  knavish  Scarlet,  the  justices,  suspecting 
something  wrong  in  the  constitution  of  the  grand  jury,  from 
the  fact  that  so  many  reputable  men  were  indicted,  an  in- 

1  This  statute  was  doubtless  a  substantial  check  upon  the  slieriff,  but 
did  not  wholly  answer  the  pui'pose  of  preventing  lawful  subjects  from 
being  put  to  answer  upon  indictments  fraudulently  procured.  Lord 
Coke  laments  that-'  notwithstanding  this  good  law,  through  the  subtelty 
and  untrue  demeanor  of  sheriffs,  and  their  ministers,  great  extortions 
and  oppressions  be  and  have  been  committed"'  by  the  return  of  grand 
jurors  '•  wilfully  forsworn  and  perjured  by  the  sinister  labor  of  the  said 
sheriffs  and  their  ministers."'  The  policy  of  this  statute  was  therefore 
extended  by  Stat.  3  Hen.  Vni.,c.  12,  providing  for  the  reformation  of  the- 
panel,  by  the  justices  of  goal  delivery  or  of  the  peace,  taking  out  the 
names  of  improper  persons,  and  putting  in  others  according  to  their  dis- 
cretion.    See  3  Co.  Inst.  33;  2  Hawk.  P.  C,  c.  25,  §  32. 


^>()2  OBJECTIONS  TO  GRAND  JURORS.      [CH.  XXVI. 

vcstigation  was  followed  by  a  quashing  of  the  indictments 
and  the  punishment  of  the  interloper. 

§  529.  Whether  this  Statute  is  in  Afllrinauce  only  of 
tlie  Conunon  l^aw. —  Some  confusion  seems  to  exist  upon 
this  point,  not  onl}'  in  the  minds  of  judges,  but  also  in  the 
minds  of  eminent  writers  upon  the  common  law.  Mr. 
CiiiTTY  observes  :  "  This  necessity  for  the  grand  inquest  to 
consist  of  men  free  from  all  objection  existed  at  common  law, 
and  was  affirmed  by  the  statute  11  Hen.  IV".,  c.  9,  which  en- 
acts that  any  indictment  taken  by  a  jury,  one  of  whom  is  uii- 
(jualified,  shall  be  altogc^ther  void  and  of  no  effect  whatso- 
ever." ^  This  statement  is  so  worded  as  to  leave  the  reader 
to  infer,  according  to  his  choice,  whether  a  part  or  the 
whole  of  the  statute  is  in  affirmance  of  the  common  law. 
Lord  Coke  is  more  explicit  upon  this  point.  He,  after 
making  a  searching  analysis  of  every  word  of  the  statute, 
•concludes  that  only  a  portion  of  the  statute  is  in  affirmance 
4md  declaratory  of  the  conmion  law,  namel}^  that  which 
provides  :  1.  That  the  grand  jurors  must  be  the  king's  law- 
ful liege  people.  2.  Returned  by  sheriffs  or  bailiffs  of 
franchises,  and  other  officers  to  whom  it  pertaineth. 
-3.  Without  any  denomination  to  the  sheriffs,  bailiffs  or  other 
officers.-  That  i)art  of  the  statute  which  declares  that  "  if 
any  indictment  be  made  hereafter,  in  any  point  to  the  con- 
trary, that  the  same  indictment  be  void,  revoked  and  holden 
for  none" — he  expi'cssly  states  to  be  "  introductory  of  a 
new  law."  ^  And  this  is  reiterated  as  the  decision  of  the 
justices  in  Scarlet's  case.* 

Prior  to  this  statute  the  Year  Books  show  no  case  of  an 
indictment  avoided  for  any  of  the  causes  mentioned  in  the 
statute.  The  earliest  case'^  seems  to  have  been  decided 
contemporaneously  with  the  passitge  of  the  statute;  and,  al- 
.t hough  no  mention  of  the  statute  is  found  in  the  brief  and 

'  1  Chitty's  Cr.  I..  309. 

'^:J  Co.  Inst.  32. 

•"  Ibid. 

••  12  Coke  Rep.  98.  99. 

■■•  Year  Book.  11  Henry  IV..  IIil;iry  Term.  fol.  41. 


§    530.]  15Y  PLEA  IN  ABATEMENT.  (i03 

crude  report  of  the  case,  Lord  Coke  regards  the  plea  as 
decided  upon  its  authority.^  Serjeant  Hawkins  admits  this 
to  be  the  general  opinion,  but  intimates  a  doubt  as  to 
whether  Parliament  had  i)asstd  the  act  before  the  decision 
in  question."^ 

§  530.  Held  to  be  so  by  most  Aiiieri<nn  Courts. —  The 
solution  of  the  question  mooted  in  the  foregoing  section  is 
not  a  matter  of  much  moment,  in  view  of  the  recognized 
rule  that  ancient  English  statutes  like  this  are  recognized 
ns  a  part  of  the  common  law  of  this  country,  if  applicable 
to  our  condition.^  That  this  statute  is  thus  applicable 
seems  to  be  the  general  opinion,  as  appears  from  frequent 
•concession  of  the  right  to  plead  in  abatement  the  want  of 
liny  qualifications,  or  the  existence  of  a  cause  of  disqualifi- 
cation, on  the  part  of  any  one  of  the  grand  jurors  finding 
the  indictment.*  In  the  same  m-mner  it  may  be  shown, 
with  like  effect,  that  the  grand  jurors  who  returned  the  in- 
dictment were  not  selected,  drawn  and  summoned  as  re- 
quired by  law.^  In  Mississippi  the  rule  was  strongly  em- 
phasized by  Chief  Justice  Sharkey:  "A  grand  jury  com- 
posed   of    members    who    do     not     possess    the    requisite 

1  3  Co.  lust.  33,  U. 

'^  2  Hawk.  P.  C,  c.  25,  §  18.  See.  in  this  connection,  2  Hale  P.  C.  155, 
■where  It  is  said  that  the  statute  '•  fortifies  "  the  common  law. 

^  1  Kent's  Com.  473. 

^  Com.  V.  Cherry,  2  Va.  Cas.  20;  Com.  v.  Long,  2  Va.  Cas.  318;  Com. 
V.  St.  Clair.  1  Gratt.  55G;  Com.  v.  Bnrton,  4  Leigh,  645;  Vattier  v.  State. 
4  Blackf.  73;  State  v.  Herndon.  5  Blackf.  75;  Hardin  v.  State,  22  Ind. 
347,  3.52;  State  v.  Foster,  9  Tex.  «5;  Jackson  v.  State,  11  Tex.  261 ;  Mar- 
tin V.  State,  22  Tex.  214;  Stanlej'  v.  State,  16  Tex.  557;  Van  Hook  v. 
State,  12  Tex.  252;  United  States  v.  Hammond,  2  Woods,  197;  Doj'le  v. 
State,  17  Ohio,  222;  State  v.  Easter.  30  Ohio  St.  .542;  Koch  v.  State,  32 
■Ohio  St.  353;  State  v.  Davis.  12  R.  I.  492;  State  v.  Rand,  33  N.  H.  216, 
228;  Bennett  v.  State,  Mart.  &  Yerg.  133;  State  v.  Dnnc:iii.7  Yerg.  271 ; 
State.  V.  Hawkins,  10  Ark.  71;  Kitrol  v.  State,  9  Fla.  9;  Gladden  v. 
State,  13  FJa.  623;  Newman  v.  State,  14  Wis.  393;  State  v.  Cole,  17 
Wis.  674.  Objections  which,  if  taken  by  Wiiy  of  challenge,  go  only  to 
th<>  favor,  cannot  be  made  the  subject  of  a  plea  in  abatement.  State  v. 
Handin.  47  Conn.  95;  State  v.  Cole,  19  Wis.  129;  State  v.  Rickey,  10  X. 
J.  L.  83. 

■•  State  V.  Symonds,  36  Me.  128;  Wilburn  v.  State,  21  Ark.  198;  Finue- 
^an  V.  State,  57  Ga.  427. 


<)04  OBJECTIONS  TO  GRAND  JURORS.  [CH.XXVI- 

qualitications,  or  who  have  not  boeii  drawn,  siunmoned  and 
impanelled  in  accordanoe  with  the  hiw,  have  Jio  power  t(^ 
tind  a  valid  indietnicnt.  These  restrictions  and  requisites 
have  been  imposed  for  wise  purj)oses.  They  are  guards 
thrown  round  the  lil)erty  of  the  citizen.  They  constitute 
an  important  part  of  the  right  of  trial  by  jury.  A  grand 
jury  does  not,  by  our  law,  consist  of  thirteen  or  more  men^ 
congregated  by  the  mere  order  of  court,  or  by  accident,  in 
a  jury  box  ;  but  it  consists  of  the  requisite  number  of  com- 
petent individuals,  selected,  summoned  and  sw^orn,  accord- 
ing to  the  forms  of  law."  ^  We  shall  presently  see  that 
the  effect  of  this  rule  was  such,  that  the  legislature  of  this 
and  other  States  found  it  necessary  to  interpose  a  pos- 
itive bar  to  objections  here  allowed.-^ 

§  531.  But  denied  by  Others. —  (1.)  In  Massachusetts, 
— The  conclusion  reached  in  the  previous  section  does  not 
find  favor  with  other  courts.  It  was  early  settled  in  Mass- 
achusetts that  "  objections  to  personal  qualifications  of 
jurors  or  to  the  legality  of  the  returns,  are  to  be  made 
before  the  indictment  is  found."  ^  This  statement  was 
criticised  in  a  later  case.  Chief  Justice  Parker  remarking, 
"  there  is  a  difiiculty  in  the  case  ;  for  a  bill  may  be  found 
against  a  person  who  has  not  been  recognized  to  appear^ 
and  who  has  no  opportunity  to  challenge."^  Nevertheless^ 
the  rule,  as  previously  settled,  does  not  seem  to  have  been 
departed  from. 

(2.)  In  Neio  York. —  The  force  of  this  ol)jection  was^ 
also  felt  in  People  v.  Jewett;^  but  the  court,  after  mature 
deliberation,  held  that  an  objection  to  a  grand  juror  after 
the  indictment  found,  which  would  [)reviously  have  afforded 
a  ground  of  challenge,  could  not  he  then  taken.      "  I  can- 


'  McQiiillen  v.  State,  S  Sined.  &  M.  587.  See  also  Rawls  v.  State,  8 
Smed.  &  M.  "/JO;  Barnej^  v.  State,  12  Smed.  &  M.  GS;  Stokes  v.  State,  24 
Miss.  G21. 

-  Po6<,  §  53G,  subsec.  1. 

3  Com.  V.  Smith,  0  Mas-s.  107. 

^  Com.  V.  Parker,  2  Pick.  549,  5G;^. 

5  3  Wend.  314;  s.  c,  affirmed  in  G  Wend.  3SG. 


^531.]  BY  PLEA  IN  ABATEMENT.  605 

not,"  said  Marcy,  J.,  "  turn  my  view  from  the  considera- 
tion of  the  great  dela3\s  and  embarrassments  which  would 
utteud  the  administration  of  criminal  justice,  if  it  was  to 
be  obtained  in  the  way  now  proposed.  No  authority  for 
adopting  this  course  was  shown  on  the  argument,  and  I 
have  not  since  been  able  to  find  any.  It  would  be  a  novel 
pi'oceeding,  and  there  is  reason  to  fear  it  might  be  followed 
with  more  serious  difficulties  than  are  now  foreseen."  ^ 

(3.)  In  N'orth  Carolina. —  The  same  rule  was  early 
iidopted  in  North  Carolina.  Here  we  meet  with  a  statement 
of  an  especially  cogent  reason  for  the  inapplicability  of  the 
statute  of  Henry  IV.  in  this  country.  "  We  have  legislated 
for  ourselves  upon  this  subject,"  said  Ruffin,  C.  J.,  "  and 
have  established  by  many  acts  a  complete  system  of  our 
own,  inconsistent  in  many  respects  with  that  of  England." 
This  was  said  in  a  case  where  it  was  attempted  to  show  in 
arrest  of  judgment  that  the  grand  jury  which  found  the  in- 
dictment was  improperly  constituted.  The  court  expressly 
held  that  "  the  statute  of  Henry  IV.  is  not  in  force  here." 
At  the  same  time  it  was  stated,  obiter  this  decision,  upon  the 
Authority  of  dicta  in  a  previous  case,-  that  such  an  objection 
might  be  made  by  plea  upon  the  arraignment.^  But  the 
process  of  reasoning  by  which  this  conclusion  is  reached  is 
not  stated,  nor  is  it  easily  discovered. 

(4.)  In  Alabama. —  The  Supreme  Court  of  Alabama, 
also,  considering  the  abuses  which  called  the  statute  into 
existence  as  impossible  under  our  system  of  procuring 
jurors,  refused  to  regard  the  statute  as  a  part  of  the  com- 
mon law  of  that  State*  The  authority  of  this  case,  how- 
ever, was  wholly  repudiated  at  a  later  date  by  the  same 
court:   "  Let  it  be  granted,"  said  Collier,  C.  J.,  "  that  it 


^  3  Wend.  323.  It  was  also  suggested  by  Mr.  Justice  Marcy  that  an 
obstacle  to  the  hearing  of  objections  to  jurors,  after  the  indictment 
found,  is  the  want  of  a  proper  mode  to  establish  the  alleged  disqualifi- 
cation. 

2  State  V.  McEntire,  2  Car.  L.  Eep.  267. 

3  State  V.  Seaborn,  4  Dev.  305. 

"  Boyington  v.  State,  2  Port.  TOO. 


606  OBJECTIONS  TO  GRAND  JURORS,  [CH.  XXVI. 

does  not  satisfactorily  appear  from  the  elementary  authors^ 
whether  the  right  to  plead  in  avoidance  of  an  indictment  the 
incompetciK'y  of  a  iiiand  juror  was  introduced  b}'^  the  stat- 
ute of  Henry  IV.,  or  was  known  to  the  common  law,  and 
we  think  the  difficulty  of  determining  the  question  should,, 
in  itself,  induce  the  allowance  of  the  plea.  In  adjudging 
legal  (}uestions  of  doubt,  the  true  rule  in  favor  of  life  and 
personal  liberty  is  to  lean  to  the  accused."  ^  Accordingly,, 
we  iind  it  established  by  the  decisions  in  this  State,  that  it 
may  be  shown  by  plea  in  abatement  that  the  grand  jury 
finding  the  indictment  were  not  drawn,  selected,  summoned 
and  impanelled  as  required  by  law,'-  or  that  any  one  or  more 
of  the  grand  jurors  had  not  the  prescribed  qualifications,, 
or  were  disqualified  from  serving  as  jurors.'^  But  the  prac- 
tical operation  of  the  foregoing  rule  was  found  to  be  such  as^ 
to  encourage  mere  technical  and  captious  objections  to  the 
delay  of  a  fair  and  just  administration  of  the  criminal  law. 
It  will  be  seen  later,  that  the  effect  of  the  foregoing  de- 
cisions is  annulled  by  statute* 

§  532.  Confusion  the  Consequence. —  In  the  light  of 
the  foregoing  sections,  it  is  only  proper  to  echo  the  remark 
of  Mr.  Justice  Swayne,  in  a  late  case,  that  "the  authori- 
ties upon  the  general  subject  as  to  how  far  an  indicted  party 
may  go  behind  the  indictment,  as  regards  the  action  of  the 
grand  jury,  or  the  questions  he  may  raise,  or  the  objections 
he  may  make,  or  what  objections,  if  sustained,  are  fatal,  or 
what  are  otherwise,  are  in  utter  confusion."  ^ 

§  583.  What  may  be  sho^\^l  by  Plea  in  Abatement. — 
The  only  objections  which  can  be  taken  to  grand  jurors  by 
[)lea  in  abatement  must   l)e    such  as  would   disqualify  the 

1  StiiLe  V.  Middleton.  5  Port.  484. 

'-  Collier  v.  State,  2  Stew.  388;  State  v.  Williams,  5  Port.  130;  State  v. 
Greenwood,  5  Port.  474;  State  v.  Lassley,  7  Port.  526;  Nugent  v.  State, 
19  Ala.  540;  Morgan  v.  State.  19  Ala.  557. 

'  State  V.  Williams,  3  Stew.  454;  State  v.  Middleton,  5  Port.  484;  State 
V.  Ligon,  7  Port.  1G7. 

^  P(/.s(,  §  536,  subsec.  5. 

5  United  States  v.  Ambrose,  (U.  S.  Cir.  Ct.  S.  D.  Ohio,  May,  1880),  % 
Fed.  Kop.  283,285. 


§  535.]  BY  PLEA  IN  ABATEMENT.  607 

juror  to  serve  in  any  case.  In  other  words,  the  plea  must 
show  the  absence  of  positive  qualifications  demanded  by 
law.  All  other  objections  affecting  the  incompetency  of 
the  juror  must  be  taken  by  challenge,  if  at  all,  and  will  not 
be  heard  after  the  time  for  challenging  is  past.^  Thus,  it  is 
not  a  good  plea  to  an  indictment  for  murder,  that  a  member 
of  the  grand  jury  which  found  the  indictment  was  a  nephew 
of  the  person  who  was  murdered.^  And,  in  those  jurisdic- 
tions where  an  exception  is  allowed  to  a  grand  juror  be- 
cause of  an  expression  of  opinion,  this  must  be  taken  l)v 
way  of  challenge.^  That  one  of  a  panel  of  grand  jurors 
happens  to  be  disqualified,  cannot  affect  the  validity  of  an 
indictment,  unless  he  is  a  member  of  the  particular  grand 
jury  finding  the  indictment.* 

§  534.  The  Plea  in  Abatement  not  favored. —  The  objec- 
tions to  a  liberal  allowance  of  this  plea  are  concisely  stated 
in  an  early  New  Jersey  case  :  "  It  is  the  most  expensive 
form  in  which  the  matter  can  be  presented,  and  the  policy 
of  the  law  requires  it  to  be  done  in  a  summary  way.  It 
may  be  used  as  an  engine  of  great  delay,  so  as  that  a  new  in- 
dictment may  be  impracticable  on  account  of  the  statute  of 
limitations,  before  the  old  one  comes  to  be  quashed  ;  and 
guilty  offenders  will,  if  they  are  able,  seek  immunity  under 
it  for  their  crimes,  and  make  it  a  refuge  against  public  jus- 
tice, turning  it  into  ridicule  and  contempt."  ^ 

§  535.  Therefore  it  must  be  strictly  pleaded. —  The 
plea  in  abatement  being  of  a  dilatory  character,  the  law  re- 
quires that  it  shall  contain  all  essential  averments  pleaded 
with  strict  exactness.^      These  should  be  neither  uncertain, 

1  State  V.  Easter,  30  Ohio  St.  542;  Kocli  v.  State,  32  Ohio  St.  353. 

2  State  V.  Easter,  supra. 

3  United  States  v.  White,  5  Cranch,  C.  C.  457;  State  v.  Swayze,  2  Or. 
L.  Mag.  261.  A  fortiori,  if  this  circumstance  would  not  afford  a  ground 
of  challenge,  it  is  not  to  be  alleged  in  support  of  a  plea  in  abatement. 
State  V.  Hamlin,  47  Conn.  95. 

*  Shinn  v.  Com.  32  Graft.  899. 

5  State  V.  Rickey,  10  X.  J.  L.  83,  86.     Opinion  by  Ford,  J. 

6  O'Counell  v. Reg.  11  CI.  &Fin.  155;  Sheridan's  Case,  31  How.  St.  Tr. 
612;  Com.  v.  Thompson,  4  Leigh,  667;  State  v.  Newer,  7  Blackf.  307;, 


<i08  OBJECTIONS  TO  GRAND  JURORS.  [CH.  XXVI. 

ambiiruou.s  nor  i'ei)iignunt.^ 

§  536.  Its  Fuiictioii.s  as  a  Substitute  for  Challenge  to 
the  Array  impaired  or  abolished  by  Statute. —  It  cannot  be 
doubted  that  the  i)lca  in  abatement  to  the  indictment  for 
incf^uhirilies  in  the  'mpanelling,  or  imperfections  in  the 
constitution  of  the  grand  jury,  has  served  more  frequently  as 
41  weapon  in  the  hands  of  law-breakers  to  cut  through  the 
meshes  of  a  just  indictment,  than  as  a  shield  to  protect  good 
citizens  from  prosecution  contrary  to  law.  The  technical 
■objections  which  it  raises,  against  the  defendant  being  put  to 
answer  the  charge  in  the  indictment,  are  the  charac- 
teristic defence  of  rogues,  and  ought  not  to  be  en- 
couraged. In  some  communities  the  evil  has  become  so 
rank  that  legislative  interference  has  been  necessary  to  ren- 
der the  punishment  of  criminals  more  certain. 

(1.)  In  Mississippi. — Thus,  "because  of  the  frequent 
escapes  from  punishment  of  those  charged  with  crime,"  ^  the 
legislature  of  Mississippi  enacted  that,  "after  the  grand  ju- 
rors shall  have  been  examined,  elected,  sworn  and  impanelled, 
no  objection  shall  be  raised  by  plea  or  otherwise,  to  the 
orand  jury ;  but  the  impanelling  of  the  grand  jury  shall  be 
eonclusive  evidence  of  its  competency  and  qualifications."  ^ 
Parties  interested  may,  however,  "challenge  or  except  to 
the  arrav  for  fraud."  * 


Lewis  V.  State,  1  Head,  329;  United  States  v.  William?,  1  Dill,  485;  State 
V.  AVills,  11  Humph.  222;  Newman  v.  State,  14  Wis.  393;  Mershon  v. 
State,  51  Ind.  19;  United  States  v.  Reeves,  3  Woods,  201;  United  States 
V.  Haminond.  2  Woods,  197;  State  v.  Swayze,  2  Cr.  Law  Mag.  361; 
State  V.  Millain,  3  Nev.  409;  Owens  v.  State,  2  Head,  455;  Ward  v. 
State,  48  Ind.  289;  McClary  v.  State,  75  Ind.  260;  Allen  v.  State,  77  111. 
484;  Kelley  v.  State,  53  Ind.  311 :  Dolan  v.  Teople,  G4  N.  Y.  485 ;  Findley 
V.  People,  1  Midi.  234;  Reich  v.  State,  53  Ga.  73;  State  v.  Bryant,  10 
Yerg.  527;  Hardin  v.  State.  22  Ind.  347:  Will)urn  v.  State.  21  Ark.  198. 
But  see  State  v.  Flemming,  66  Me.  142. 

1  Hardin  v.  State,  22  Ind.  347;  Wilburn  v.  State.  21  Ark.  198. 

2  Lee  V.  State,  45  Miss.  114,  118,  per  Tarbell,  J.  See  also  Boulo  v.  State, 
51  Ala.  19,  per  Brickell,  J. 

3  Rev.  Code  ISIiss.  1857,  p.  499,  §  131 ;  Rev.  Code  Miss.  1880,  §  1667. 

•*  lUd.    See  Lee  v.  State,  supra;  Niehols  v.  State,  46  Miss.  284;  Head 
V.  State,  44  Miss.  731  ;  Durrah  v.  State,  44  Miss.  789. 


§  536.]  BY  TLEA  IN  ABATEMENT.  609 

(2.)  In  Louisiana. —  The  statutes  of  this  State  require 
all  objections  for  defects  or  informalities  in  the  formation, 
drawing,  or  summoning  of  grand  or  petit  juries,  to  be  made 
upon  the  first  day  of  the  term,  and  not  afterwards.^ 

(3.)  In  Indiana  and  Kansas. —  The  statutes  of  Indiana 
and  Kansas  provide  that  "  no  plea  in  abatement,  or  other 
objection,  shall  be  taken  to  any  grand  jury  duly  charged  and 
sworn,  for  any  alleged  irreguhirity  in  their  selection,  unless 
such  irregularity,  in  the  opinion  of  the  court,  amounts  to 
corruption,  in  which  case  such  plea  or  objection  shall  be  re- 
ceived." -  A  plea  in  abatement,  alleging  simply  an  irregu- 
larity in  selection,  is  plainly  insufficient,  unless  it  imputes 
corruption  to  the  officer  charged  with  this  duty."  ^ 

(4.)  In  Texas. —  The  Texas  Code  of  Criminal  Procedure 
of  1879  provides  that  "  any  person,  before  the  grand  jury 
have  been  impanelled,  may  challenge  the  array  of  jurors, 
or  any  person  presented  as  a  grand  juror,  and  in  no  other 
way  shall  objections  to  the  qualifications  and  legality  of  the^ 
grand  jury  be  heard."*  The  motion  to  set  aside  the  in- 
dictment is  allowed  for  causes  only  which  relate  to  the; 
proceedings  of  the  grand  jury.^ 

(5.)  In  Alabama. — "  No  objection  can  be  taken  to  an 
indictment,  by  plea  in  abatement,  or  otherwise,  on  the 
ground  that  any  member  of  the  grand  jury  was  not  legally 
qualified,  or  that  the  grand  jurors  were  not  legally  drawn 
or  summoned,  or  on  any  other  ground  going  to  the  forma- 
tion of  the  grand  jury."  ^     The  only  exception  to  the  fore- 

1  E.  S.  La.  1856,  p.  29G.     See  State  v.  Hoffpauer,  21  La.  An.  609. 

2  2  Gav.  &  H.  lad.  Stat.  431;  2  Stat.  Ind.  1876,  p.  419,  §  12;  Comp.  L. 
Kan.  1879,  §  4571. 

3  Hardin  v.  State,  22  Ind.  347.  See  also  Mershon  v.  State,  51  Ind.  14; 
Dorman  v.  State,  56  Ind.  456;  Hess  v.  State,  73  Ind.  537. 

*Art.  377.  See  Hudson  v.  State,  40  Tex.  12;  Newman  v.  State,  43 
Tex.  525;  Johnson  v.  State,  33  Tex.  570.  As  to  the  effect  of  a  change  in 
the  law  of  this  chavacter  upon  pending  indictments,  see  Martin  v.  State, 
22  Tex.  214. 

5  Texas  Code  Cr.  Proc.  1879,  Art-  523. 

6  Code  Ala.  1876,  §  4889.  See  Harrington  v.  State,  36  Ala.  236;  San- 
ders V.  State,  55  Ala.  183;  Cross  v.  State,  63  Ala.  40;  Ex  parte  McCoy,  64 
Ala.  201.    The  construction  which  this  provision  has  received  in  two 

(39) 


610  OBJECTIONS  TO  GRAND  JURORS.  [CH.  XXVI. 

going  is  a  provision  that  objection  may  be  taken  by  plea  in 
abatement  where  the  jurors  were  not  drawn  in  the  presence 
of  the  officers  designated  by  law.^ 

(6.)  In  Missouri. —  Under  the  provision  of  the  code  of 
criminal  procedure  of  this  State,  to  the  effect  that  no  chal- 
lenge to  the  array  of  grand  jurors  or  to  any  person  sum- 
moned as  a  grand  juror,  shall  be  allowed  in  any  other  cases 
than  such  as  are  spcciticd  by  law,^  it  is  hold  that  no  objec- 
tion to  the  body  of  grand  jurors,  in  the  nature  of  a  chal- 
lenge to  the  array,  can  be  introduced  in  the  form  of  a  plea 
in  abatement.^ 

§  537.  Xo  longer  a  Substitute  for  Challenges  to  the 
Polls. —  In  Alabama*  and  Texas,*  as  we  have  already  seen, 
and  in  many  other  States,  a  plea  in  abatement  to  an  indict- 
ment will  be  no  longer  heard  as  an  objection  to  its  validity, 

cases  would  seem  to  be  justly  open  to  criticism.  In  the  first  of  these 
cases  (Cross  v.  State,  63  Ala.  40)  a  distinction  is  taken  between  the 
action  of  the  board  which  the  law  creates,  for  the  selection  and  drawing 
of  grand  jurors,  and  the  order  of  the  court  directing  the  summoning  of 
talesmen  to  be  added  to  the  panel.  Where  such  an  order  is  improperly 
made,  the  grand  jury  is  regarded  as  organized  without  authority,  and 
incapable  of  finding  indictments.  See,  in  this  connection,  ante^  §  493. 
It  would  seem  that  such  a  construction  cannot  be  supported,  in  view  of 
the  fact  that  the  statute,  after  curing  irregularities  in  the  drawing  and 
summoning,  expressly  provides  that  no  objection  shall  be  raised  "  on 
any  other  ground,''  etc.  In  the  second  case  (Boulo  v.  State,  .51  Ala.  IS) 
it  was  held  that  a  defendant  of  the  colored  race  was  not  entitled  to  com- 
plain that  in  the  selection  of  the  jurors,  persons  of  color  were  ignored 
and  rejected,  and  white  persons  only  were  selected,  "  whereby  this  de- 
fendant was  and  is  deprived  of  his  civil  rights  and  lorivileges."  The 
Supreme  Court  of  the  United  States  has  lately  determined  this  point  to 
the  contrary.  Such  a  discrimination  is  a  violation  of  the  constitution 
and  laws  of  the  United  States,  which  the  State  courts  are  bound  to 
redress.  A  denial  of  justice  in  this  particular  will  be  remedied  by  writ 
of  error  from  the  Supreme  Court  of  the  United  States.  Neal  v.  Del- 
aware, 103  U.  S.  370;  s.  c,  12  Cent.  L.  J.  514;  23  Alb.  L.  J.  466.  See  in 
this  connection  the  discussion  in  Chap.  II,  §  27  ct  seq. 

1  Ibid.     See  Russell  v.  State,  33  Ala.  3G6. 

2  R.  C.  Mo.  1845,  p.  863,  §  3 ;  R.  S.  Mo.  1879,  §  1773. 

3  State  V.  Bleekley,  18  Mo.  428;  State  v.  Welch,  33  Mo.  33;  State  v. 
Connell,  49  Mo.  282. 

*  Ante,  §  536,  subsec.  5. 

*  Ante,  §  536,  subsec.  4. 


§   538.]  BY  PLEA  IN  ABATEMENT.  611 

which  shows  only  that  one  or  more  of  the  members  of  the 
^rand  jury  by  whom  it  was  presented  were  deficient  in  the 
qualifications  required  by  law.  This  is  believed  to  be  the 
law  in  Mississippi/  Nebraska,^  West  Virginia,^  Arkansas,* 
Illinois^  and  lowa.^  Thus,  under  the  Illinois  statute,  it 
cannot  be  pleaded  in  abatement  of  an  indictment  that  one 
of  the  grand  jurors  by  whom  it  was  found  was,  at  the  time 
of  the  finding,  a  citizen  of  another  State  ;  ^  nor  even  that 
the  sheriff  substituted  for  a  member  of  the  panel,  whom  he 
was  directed  to  summon,  another  person,  who  duly  appeared 
and  took  part  in  the  finding  of  the  indictment.^ 

§  538.  Objections  suggested  by  Amicus  Curiae. —  Al- 
though the  effect  of  the  statutes  noticed  in  the  preceding 
sections  is  to  do  away  with  the  interposition  of  objections 
to  the  panel  or  polls  of  the  grand  jury  after  indictment 
found,  as  a  matter  of  right,  nevertheless,  it  would  seem 
l^roper  for  the  court  to  receive  such  objections  from  the  coun- 
sel as  amicus  curiae,  and  if  necessary  hear  evidence  and  sus- 
tain such  objections  in  cases  where  the  jurors  are  conspicu- 
ously wanting  in  the  qualifications  demanded  by  law,  or 
where  the  oflicers  charged  with  the  duty  of  selecting,  draw- 
ing and  summoning  the  grand  jurors  have  been  guilty  of 
flagrant  violations  of  duty  to  the  prejudice  of  the  accused.^ 

1  R.  C.  Miss.  1880,  §  1663. 

2  Comp.  L.  Neb.  1881,  p.  618,  §  665. 

3  K.  S.  W.  Va.  1879,  ch.  53,  §  12.    See  Bradford  v.  State,  4  W.  Va.  763. 

4  Ark.  Dig.  Stat.  1874,  §  1798. 
°R.  S.  111.  1880,  p.  412,  §411. 

6  Miller's  R.  C.  Iowa,  1880,  §  4266. 

7  Davison  v.  People,  90  111.  221. 

**  McElhanon  v.  People,  92  111.  369.  This  was  a  case  of  misdemeanor 
only,  which  might  as  well  have  been  prosecuted  upon  information.  The 
court  intimated  that  a  different  conclusion  might  have  been  reached  in 
a  capital  case  or  a  case  of  felony. 

9  See  Boulo  v.  State,  51  Ala.  19;  McElhanon  v.  People,  92  111.  369,  372. 


612  OBJECTIONS  TO  GRAND  JURORS.  [cU.  XXVI. 

ARTICLE  III. 

BY   MOTION    TO    QUASH. 
SKCTION. 

541.  Plea  in  Abatement  tlie  better  Practice. 

542.  Keason  for  this  Preference. 

543.  Motion  to  Quasli  for  Matter  dehors  the  Record. 

§   541.  Plea   in  Abatement   tlie   better  Practice. —  We 

have  hitherto  seen  that,  where  objections  to  the  indictment 
are  listened  to,  grounded  upon  irregularities  in  the  organi- 
zation of  the  grand  jury,  or  to  the  incompetency  of 
particular  members  of  that  body,  such  o])jections  are  gen- 
erally taken  by  plea  in  abatement.  This  is  by  far  the 
more  common  practice.^ 

§  542.  Keason  for  tbis  Preference.  —  This  flows  from 
the  fact  that,  as  a  general  rule,  an  indictment  will  not  be 
quashed  upon  motion,  unless  for  defects  apparent  on  the 
face  of  the  record.^  Objections  to  the  regularity  of  the 
organization  of  the  grand  jury,  and  certainly  to  particular 
jurors  for  lack  of  qualifications  demanded  by  law,  are  gen- 
erally based  upon  matters  not  apparent  in  the  record.  It 
is,  therefore,  not  surprising  to  find  the  practice  of  taking 
such  objections  by  a  motion  to  quash  the  indictment,  con- 
demned as  unequivocally  bad.^ 

§  543,  Motion  to  Quash  for  Matter  dehors  the  Record. 
— The  statement  in  the  previous  section  as  to  the  grounds 
of  this  motion  is  not  accepted  by  all  courts.  Thus,  in  a 
recent  case  the  Supreme  Court  of  Pennsylvania  say :  "  We 
do  not  deny  the  power  of  the  court  to  quash  an  indictment 
for  matters   not  appearing  upon  its  face.     This   is  some- 

1 1  Bish.  Cr.  Proc,  (3d  ed.),  §  883.  See  also  State  v.  McEntire,  2  Car. 
L.  Repos.  287;  State  v.  Seaborn,  4  Dev.  305;  State  v.  Haywood,  73  N". 
C.  437;  State  v.  Martin,  82  N.  C.  672;  State  v.  Griffice,  74  N.  C.  316; 
People  V.  Hunter,  54  Cal.  65;  State  v.  Foster,  9  Tex.  65. 

2  McCullough  y.  Com.,  67  Pa.  St.  30;  United  States  v.  Brown,  1  Sawy. 
531;  Bell  v.  State,  42  Ind.  335;  Peter  v.  State,  11  Tex.  762;  State 
V.  Oxford,  30  Tex.  428. 

3  Bish.  Cr.  Proc.  (3d  ed.),  §  882,  citing  Durr  v.  State,  53  Miss. 425,427. 
See  also  the  cases  cited  ante,  §  541. 


'§   543,]  OBJECTIONS  AVHEN  MADE.  613 

times  done  for  defects  in  the  process  of  drawing  and  sum- 
moning the  grand  jury,  or  irreguUirities  connected  with  the 
jury  wheel,  and  where  an  indictment  is  found  pending  a 
writ  of  habeas  corpus.'"'^  At  tlie  same  time,  it  was  said 
that  the  i^ower  should  be  exercised  with  caution.  Under 
the  AVisconsin  practice  the  incompetency  of  a  particular 
grand  juror,  for  example,  that  arising  from  alienage,  ma}'' 
be  taken  advantage  of  by  a  motion  to  quash  the  indict- 
ment, or  by  a  plea  in  abatement,  either  of  which  is  suffi- 
cient.^ Upon  one  occasion,  after  pleading  to  an  indict- 
ment, the  defendant  filed  a  motion  to  quash,  alleging  that 
the  grand  jury  had  no  jurisdiction.  In  this  case  Cock- 
burn,  C.  J.,  is  reported  as  saying:  "As  regards  the 
objection  that  the  motion  to  quash  cannot  be  made  after 
plea  pleaded,  I  think  if  it  is  made  to  ajjpear  clearly  that 
there  was  no  jurisdiction,  we  have  power  to  quash  the  in- 
dictment at  any  stage,  and  even  for  matter  not  apparent  on 
the  face  of  the  indictment,  brought  to  our  notice  by  ex- 
traneous evidence  upon  afiidavit."  ° 


ARTICLE  IV. 


OBJECTIONS  WHEN  MADE. 

SECTION. 

545.  A  Two-fold  Right  of  Objection  not  allowed. 

(1.)  Under  the  English  Practice. 

(2.)  Under  the  Statntes  of  the  Several  States. 

546.  But  an  Opportunity  of  Challenging  must  be  afforded  Persons 

held  in  Custodj'. 

547.  And  so  in  Case  of  Persons  under  Recognizance. 

548.  How  in  Case  of  one  not  previouslj^  under  Prosecution. 

1  Com.  V.  Bartilson.  85  Pa.  St.  482,  per  Paxson,  J.     See  also  Brown  v. 
Com.,  73  Pa.  St.  321. 

2  State  V.  Cole,  17  Wis-  G74. 

3  Reg.  V.  Heane,  9  Cox  C.  C.  433,  436.    See  also  People  v.  Bennet,  37 
:N^.y.  117,123. 


614  OBJECTIONS  TO  GRAND  JURORS.  [CH.  XXVI.. 

549.  Challenges  to  be  in;ulo  boforo  Juror  sworn. 

550.  Waiver  of  Objections  by  Plea  of  Not  Guilty. 

(1.)  Under  the  English  Practice. 
(2.)  I'nder  the  American  Practice. 

551.  Exception  where  the  Error  is  apparent  of  Record. 

§    545.   A  Two-fold  Right  of   Objection  not  allowed. — 

(1.)  Under  the  Englislt  Practice. —  The  previous  sec- 
tions show  that  in  some  jurisdictions  the  accused  has, 
under  certain  circumstances,  a  right  of  challenge  to  the 
panel  or  to  the  polls  of  the  grand  jury,  and  under  others,  a 
right  of  objection  to  the  indictment,  for  the  same  reasons 
which  would  support  a  challenge  upon  the  impanelling  of  the 
grand  jury  by  which  the  indictment  was  presented.  The 
same  person  can  never  properly  exercise  both  rights.  This 
was  never  permitted  under  the  English  practice.  The 
statute  of  11  Hen.  IV,  c.  9,^  which  granted  the  right  of 
objection  to  the  indictment  on  account  of  the  lack  of  qual- 
ifications or  undue  return  of  the  grand  jurors,  together 
with  that  of  3  Hen.  VIII.,  c.  12,  providing  for  the  reforma- 
tion of  the  panel,  amply  protected  the  rights  of  accused  per- 
sons, although  no  right  of  challenge  existed  at  common  law.'^ 
(2.)  Under  the  Statutes  of  the  /Several  /States. —  The 
rule  just  stated  is  enforced,  either  by  courts,  or  by  the  express 
terms  of  statutes  granting  the  right  of  challenge  or  objec- 
tion to  the  indictment.^  In  the  case  of  a  prisoner  upon  ar- 
raignment, who,  before  indictment,  has  been  held  for  the 
offense  charged  by  such  indictment,  it  certainly  involves 
great  inconsistency  to  maintain  that  the  circumstance  of  a 
grand  juror  lacking  the  qualifications  required  by  law 
should  avoid  an  indictment,  when,  if  one  equally  objection- 
able serve  on  a  petit  jury,  whose  conclusion  is  final  in  a 
civil  or  criminal  case,  the  verdict  cannot  for  this  cause  be 
disturbed.*  It  is  a  strange  circumstance  that  any  court 
should  have  fallen  into  the  error  of  supposing  that  this  double 
right  of  objection  existed.     Nevertheless,  this  seems  to  have 

1  See  ante,  §  528.  2  ^me,  §  507  et  srq. 

»  See  Comp.  L.  Ariz.  1877,  §  582;  Cal.  Penal  Code,  §  901 ;  Laws  Utah, 
1878,  §  125;  Miller's  Rev.  Code  Iowa,  1S80,  §§  4258,  4266,  4339. 
*  Aiite,  §  302. 


§   546.]  OBJECTIONS  WHEN  MADE.  615 

been  the  opinion  of  the  early  Indiana  court, ^  but  the  mistake 
has  been  corrected  by  later  decisions.  This  and  other  Ameri- 
can courts  uniformly  hold  that,  where  the  right  of  challenge 
exists,  one  held  in  custody  or  to  answer,  before  indictment, 
can  object  to  the  panel  or  to  the  individual  grand  jurors 
only  by  way  of  challenge.'^ 

§  546.  But  an  Opportunity  of  Challenging  must  be 
afforded  Persons  held  in  Custody. —  What  has  just  been 
said  would  seem  to  be  reasonably  subject  to  the  qualifica- 
tion that  the  person  under  prosecution  must  be  afforded  an 
opportunity  for  the  exercise  of  the  right  of  objection  as 
granted  by  statute.  The  proper  practice,  where  the  right 
of  challenge  exists,  would  seem  to  be  to  bring  into  court  all 
prisoners  who  are  awaiting  the  action  of  the  grand  jury,  in 
order  that  there  may  be  no  complaint  upon  this  score. ^  But 
the  Texas  Court  of  Appeals,  while  enjoining  this  duty,  held 
that  the  accused  had  no  remedy  for  the  failure  of  the  offi- 
cers to  do  so.*     The  Supreme  Court  of  California  goes  the 


'  Vattier  v.  State,  4  Blackf.  73. 

*  People  V.  Hidden,  32  Cal.  445;  People  v.  Beatty,  14  Cal.  566;  People 
V.  Arnold,  15  Cal.  476;  People  v.  Colniere,  23  Cal.  631;  Norris  House  v. 
State,  3  G.  Greene,  513;  Diitell  v.  State,  4  G.  Greene,  125;  Dixon  v. 
State,  3  Iowa,  416;  State  v.  Hinkle,  6  Iowa,  380;  State  v.  Howard,  10 
Iowa,  101;  State  v.  Ingalls,  17  Iowa,  8;  State  v.  Ostrander,  18  Iowa, 
435;  State  v.  Hart,  29  Iowa,  268;  State  v.  Gibbs,  39  Iowa,  318;  Bellair 
V.  State.  6  Blackf.  104;  State  v.  Bolt,  7  Blackf.  19;  State  v.  Hensley,  7 
Blackf.  324;  Hardin  v.  State,  22  Ind.  347,  351 ;  Mershon  v.  State,  51  Ind. 
14,19;  McClary  v.  State,  75  Ind.  260.  Where  the  record  is  silent  as  to 
whether  the  defendant  was  or  was  not,  held  to  answer  before  indictment, 
an  appellate  court  will  presume,  in  favor  of  the  correctness  of  the 
ruling  of  the  trial  court,  denying  to  the  defendant  the  opportunity  of 
presenting  objections  to  grand  jury,  upon  arraignment,  that  he  was  so 
held  to  answer.  State  v.  Gibbs,  39  Iowa,  318.  An  accused  person  ma}% 
by  his  attorneys,  waive  the  right  of  challenging  the  grand  jury.  It  is 
not  necessary  that  he  should  be  personally  present  during  the  process  of 
impanelling  that  body.  State  v.  Felter,  25  Iowa,  67;  State  v.  Fowler,  52 
Iowa,  103. 

3  Reed  v.  State,  1  Tex.  App.  1. 

*  Thomason  v.  State,  2  Tex.  App.  550.  But  since  this  decision  the  duty 
has  been  enforced  by  statute.  Texas  Code  Cr.  Proc.  1879,  Art.  377.  It 
is  conceived  that  a  neglect  of  the  officers  to  comply  with  this  statute, 
would  entitle  one  who  was  under  prosecution  before  indictment  to  urge 


GIG  OBJECTIONS  TO  GRAND  JURORS.  [CH.  XXVI. 

length  of  holding  that  it  is  not  the  duty  of  the  trial  court  to 
bring  one  held  in  custody  into  court  for  this  purpose  ;  that 
it  is  the  prisoner's  business  to  know  when  the  court  meets, 
and  if  he  desires  to  challenge  the  jury,  to  appl}-^,  if  in  cus- 
tody, to  the  court,  to  be  brought  into  court  for  that  pur- 
pose ;  and  if  he  fails  to  do  this,  he  waives  his  privilege  of 
excepting  to  the  panel,  or  to  any  member.^  Such  a  rule  has 
been  properly  condemned,  as  "  revolting  to  the  sense  of 
justice."  "^  AVitholding  our  approval  of  the  policy  of  those 
statutes  which  guarantee  the  right  of  challenge  to  the  panel 
or  to  the  polls  of  the  grand  jury,  we  say  that  the  plainest 
principles  of  justice  require  that,  wherever  the  right  exists, 
every  facility  should  be  afforded  for  its  exercise,  and  that 
neither  laches  nor  an  implied  waiver  can  be  rightly  imputed 
to  one  who  has  not  been  in  any  respect  warned  of  his  rights, 
or  granted  an  opportunity  for  their  exercise.^ 

§  547.  And  so  in  Case  of  Persons  under  Recogniz- 
ance.—  It  would  seem  to  be  in  accord  with  what  has  just 
been  said  that  one  who  has  entered  into  a  recognizance  to 
appear  at  a  certain  term  to  await  the  action  of  the  grand 
jury,  cannot  be  held  bound  to  appear  at  an  earlier  date  and 
make  his  challenges  to  the  grand  jury,  if  notice  of  the 
meeting  has  been  given  only  by  publication.* 

§  548.  How  in  Case  of  One  not  Previously  under  Pros- 
ecution.—  Where  it  is  the  conceded  right  of  an  accused 
person  under  prosecution,  whether  in  custody  or  out  upon 
bail,  to  challenge  the  grand  jury,  the  same  right  should  be 
accorded  in  some  form  to  a  person  indicted  Avithout  pre- 
vious knowledge  of  the  charge  upon  which  the  indictment  is 
founded.  In  this  connection,  as  has  been  observed,  it  must 
be  remembered  that  the  action  of  the  grand  jury  is  ex  parte 


the  same  objection  to  the  panel  or  to  the  polls  of  the  grand  jury,  after 
indictment,  whicli  he  would  have  been  entitled  to  make  bj'  way  of 
challenge  upon  the  impanelling  of  that  body. 

1  People  V.  Romero,  18  Cal.  89. 

2  Russell  V.  State,  33  Ala.  3G6,  371,  per  Walker,  C.  J. 

3  Mershon  v.  State,  51  Ind.  14,19;  State  v.  Davis,  12  R.  I.  492,  494. 
^  Territory  v.  Ingersoll,  3  Moat.  454. 


§    550.]  OBJECTIONS  WHEN  MADE.  617 

and  preliminary  ;  and  it  is  contraiy  to  principle  to  hold  that 
a  person  shall  forfeit  his  rights  by  not  intervening  in  a  pro- 
ceeding to  which  he  is  not  a  party. ^  Obviously,  the  first 
opportunity  afforded  persons  not  under  prosecution  of  ob- 
jecting to  the  constitution  of  the  l)ody  finding  the  indict- 
ment, is  upon  their  arraignment  for  trial,  at  which  time 
they  may  properly  plead,  in  abatement  to  the  indictment,  any 
objections  to  the  grand  jurors  in  question.^ 

§  549.  Challenges  to  be  made  before  Juror  sworn. — 
Where  the  statutes  grant  a  right  of  challenge,  either  to  the 
array  or  to  the  polls,  the  exercise  of  it  seems  to  be  subject 
to  the  same  rules  as  prevail  in  the  case  of  challenges  to 
petit  jurors.  Neither  a  challenge  to  the  array  nor  to  the 
polls  can  be  made  after  the  grand  jury  has  been  sworn.^ 

§  550.  Waiver  of  Objections  by  Plea  of  Not  Guiltj'. — 
(1)  Under  the  English  Practice. —  It  would  seem  that  the 
unequivocal  terms  of  the  statute  11  Hen.  IV.,  c.  9,  make 
it  the  duty  of  the  court  to  receive  an  objection  to  the  com- 

1  State  V.  Davis,  12  K.  I.  492,  494,  perDurfee,  C.  J. 

2  State  V.  Davis,  supra\  State  v.  Eockafellow,  6  N.  J.  L.  332,  341; 
McElvoj^  V.  State,  9  Neb.  157;  Hardin  v.  State,  22  Ind.  347;  United 
States  v.  Hammond,  2  Woods,  197;  United  States  v.  Reed,  2  Blatch. 
435,  449,  452;  Mershon  v.  State,  51  Ind.  14;  Clare  v.  State,  30  Md.  163; 
Norris  House  v.  State,  3  G.  Greene,  513,  518;  Dutell  v.  State,  4  G. 
Greene,  125;  Newman  v.  Slate,  14  Wis.  393,  401;  Reicli  v.  State,  53  Ga. 
73;  People  v.  Beatty,  14  Cal.  566;  State  v.  Herndon,  5  Blackf.  75;  Fen- 
alty  V.  State,  12  Ark.  630;  State  v.  Brown,  10  Ark,  78;  Brown  v.  State, 
10  Ark.  607.  This  view  is  forcibly  enjoined  by  Chief  Justice  Sharkey 
in  a  prominent  case:  "A  prisoner,''  said  he,  "who  is  in  court,  and 
against  whom  an  indictment  is  about  to  be  preferred,  maj^  undoubtedly 
challenge  for  cause ;  this  is  not  questioned.  But  the  grand  jury  may 
find  an  indictment  against  a  person  who  is  not  in  court;  how  is  he  to 
avail  himself  of  a  defective  organization  of  the  grand  jury "r*  If  he  cannot 
do  it  by  plea,  he  cannot  do  it  in  any  way;  and  the  law  works  unequally, 
by  allowing  one  class  of  persons  to  object"  to  the  competency  of  the  grand 
jury,  whilst  another  class  has  no  such  privilege.  This  cannot  be.  The 
law  furnishes  the  same  security  to  all ;  and  the  same  principle  which  gives 
to  a  prisoner  in  court  the  right  to  challenge,  gives  to  one  who  is  not  in 
court  the  right  to  avcomplish  the  same  end  by  plea;  and  the  current  of 
authorities  sustains  such  a  plea."  McQuillen  v.  State.  8  Smed.  &  M.  587, 
597. 

3  United  States  v.  Butler,  1  Hughes,  467;  United  States  v.  Palmer, 
2  Cranch  C.  C.  11 ;  McQuillen  v.  State,  8  Smed.  &  M.  587. 


618  OBJECTIONS  TO  GRAND  JURORS.     [CH.  XXVI. 

petency  or  due  retuiii  of  the  grand  jurors,  at  any  time,  even 
after  plea  to  the  merits  of  the  indictment,  and  even  after 
verdict;  because  tiie  statute,  for  the  reasons  tlicrein  stated, 
dechires  the  indictment  "void."  But  the  uniform  practice 
has  been  to  the  contrary.  Under  the  statute,  the  proceed- 
ings of  the  grand  jury  arc  void  only  when  the  matter  of 
avoidance  is  brought  before  the  court  at  a  proper  and  early 
stage,  namely,  by  special  plea  upon  arraignment,  with  a 
plea  over  to  the  charge,  either  then  or  upon  the  over- 
ruling of  the  first  plea.^  The  reason  for  this  construction 
of  the  statute  is  })lain.  It  must  be  remembered  that 
the  sole  object  of  proceeding  by  way  of  indictment  is  to 
ascertain  whether  sufficient  grounds  exist  for  compelling  an 
accused  jjerson  to  appear  and  defend  the  charge.  After 
one  has  so  appeared,  suliniitted  his  defence,  and  a  convic- 
tion is  the  result,  it  does  not  lie  in  his  mouth  to  say  that  he 
ought  never  to  have  been  compelled  to  answer  the  charge, 
because  of  certain  technical  defects  in  the  formation  of  the 
grand  jury  which  preferred  the  indictment.  If  convicted 
upon  the  evidence,  he  was  at  least  justly  accused.^ 

(2.)  Under  the  American  Practice. —  Generally  speak- 
ing, it  may  be  said  that  the  rule  is  the  same  in  this  country. 
We  have  seen  that,  where  any  objection  is  permitted  after 
the  indictment  has  been  found,  this  is  usually  taken  by  plea 
in  abatement,  which,  from  its  very  nature,  must  be  made  be- 
fore the  plea  of  not  guilty  ;^  and  if  the  defect  can  be  taken 

1  3  Co.  Tnst.  33,  34;  2  Hawk.  P.  C.  ch.  25,  §  26;  1  Chitty  Cr.  L.  309; 
Withipole's  Case,  Cro.  Car.  134.  However,  in  the  first  case  decided  un- 
der tlie  statute  (Year  Book,  Hil.  T.,  11  Hen.  IV.,  fol.  41),  after  tlie  de- 
fendant liad  pleaded  not  guilty  to  the  indictment,  a  plea  was  admitted 
that  certain  of  the  indictors  were  outlawed.  But  this  seems  to  have 
been  allowed,  because  the  indictors  in  question  were  outlawed  in  the 
same  court  in  which  the  defendant  was  arraigned ;  therefore  the  court 
might  take  judicial  notice  of  this  fact,  or  learn  it  from  any  one  as 
amicus  curiae     See  Hawkins,  ubi  sup. 

2  Rex  V.  Marsh,  6  Ad.  &  E.  23G. 

3  Gladden  v.  State,  13  Fla.  623;  Horton  v.  State,  47  Ala.  .58;  Sparren- 
berger  v.  State,  53  Ala,  481,  485;  McElvoy  v.  State,  9  Neb.  157;  State 
v.  Martin,  82  X.  C.  672;  People  v.  Griffin,  2  Barb.  427;  Stewart  v.  State, 
13  Ark.  744;  McQuillen  v.  State,  8  Smed.&  M.  587;  Byrne  v.  State,  12 


§   550.]  OBJECTIONS  AVHEN  MADE.  619 

advantage  of  by  a  motion  to  quash,  that  motion  likewise 
must  precede  the  plea  of  not  guilty.^  Clearly,  therefore, 
objections  of  this  nature  will  never  be  heard  in  arrest  of 
judgment,^  nor  in  an  appellate  court  for  the  first  time.* 
The  circumstance  that  the  particular  irregularity,  or  the 
matter  affecting  the  competency  of  the  grand  juror,  was  not 
discovered,  and  could  not,  by  the  exercise  of  due  diligence, 
have  been  discovered,  until  the  time  for  taking  the  objec- 
tion in  regular  form  had  elapsed,  cannot  properly  weigh 
with  the  court  in  passing  upon  a  motion  in  arrest,  or  when 
the  same  facts  are  brought  to  the  attention  of  the  appellate 
court.*  It  is  true  that  new  trials  are  sometimes  granted  be- 
cause  of  circumstances  previously  unknown  to  the  moving 
party  affecting  the  competency  of  particular  petit  jurors,  or 
the  regularity  of  the  organization  of  the  trial  jury  ;  but  in 
such  cases  it  must  appear  that  the  facts  relied  upon  have- 
operated  to  the  manifest  prejudice  of  the  moving  party. 
But,  after  conviction,  as  we  have  before  stated,  the  defend- 
ant cannot  be  heard  to  say  that  he  has  been  prejudiced  by 
the  illegal  constitution  of  the  accusing  body. 

Wis.  519;  State  v.  Martin,  2  Ired.  L.  101;  State  v.  Baldwin,  80  N".  C. 
390;  State  v.  Blackburn,  80  N.  C.  47-i;  Cody  v.  State,  3  How.  (Miss.) 
27;  Parks  v.  State,  4  Ohio  St.  234;  Brantley  v.  State,  13  Smed.  &  M. 
468;  Nugent  v.  State,  19  Ala.  540;  State  v.  Maloney,  12  K.  I.  251.  See 
also  Com.  v.  Chauncey,  2  Ashm.  90;  Dyott  v.  Com.,  Whart.  57  (deci- 
sions under  a  statute  of  Pennsylvania,  the  correctness  of  which  may  be 
questioned).     Compai-e  Clinton  v.  Englebrecht,  13  Wall.  434. 

1  State  V.  Maloney,  12  E.  I.  251 ;  Potsdamer  v.  State,  17  Fla.  895;  State 
V.  Burlingham,  15  Me.  104;  People  v.  Monroe,  20  Wend.  108. 

2  Battle  v.  State,  54  Ala.  93;  Burroughs  v.  State,  17  Fla.  643;  Green  v. 
State,  28  Miss.  687;  State  v.  Watson,  31  La.  An.  379;  Stone  v.  People,  3 
111.  326;  State  v.  Davis,  2  Ired.  L.  153;  Mullen  v.  State,  50  111.  169; 
Veatchv.  State,  56  Ind.  584;  State  v.  Conway,  23  Minn.  291;  Hudson  v. 
State,  40  Tex.  12;  Grubb  v.  State,  14  Wis.  434;  State  v.  Rand,  33  N.  H. 
216;  State  V.  Vahl,  20  Tex.  779;  State  v.  Underwood,  6 Ired.  L.  96;  State 
V.  Carver,  49  Me.  588 ;  Penalty  v.  State,  12  Ark.  630 ;  State  v.  Fury,  14  La. 
An.  827;  People  v.  Robinson,  2  Park.  Cr.  R.  235;  State  v.  Motley,  7 
Rich.  L.  327;  State  v.  Pile,  5  Ala.  72;  Jackson  v.  Com.,  13  Gratt. 
795,  801. 

3  Floyd  V.  State,  30  Ala.  511 ;  Wallace  v.  State,  2  Lea,  29;  Halloway  v. 
State,  53  Ind.  554;  Bass  v.  State,  37  Ala.  469;  Barron  v.  People,  73 
HI.  256. 

4  Byrne  v.  State,  12  Wis.  519. 


620  OBJECTIONS  TO  GRAND  .JTJROKS.  [CII.  XXVI. 

§    551.     Kx<'('i>ti(>ii    ^vho^e     tl»e    Krr<n'    is    apparoiit    of 

Record. —  The  rule  just  stated  is  subject  to  the  qualification 
that,  if  the  matter  relied  on  to  support  the  motion  in  arrest 
of  judgment,  or  the  assignment  of  error  in  an  appellate 
tril)unal,  is  apparent  upon  the  record,  the  court  is  bound  to 
regard  the  verdict  and  judgment  rendered  u})on  the  indict- 
ment as  absolutely  void.  The  laches  of  the  accused,  in  not 
urging  the  matter  at  a  previous  stage  of  the  case,  cannot 
cure  the  illegality.^  Accordingly,  convictions  have  been  set 
aside,  where  it  appeared  that  the  indictment  was  found  when 
the  court  had  no  authority  to  organize  a  grand  jury,  or 
under  circumstances  showing  a  want  of  jurisdiction  of  the 
offence  ;  ^  that  the  grand  jurors  were  drawn  for  a  term  other 
than  that  at  which  the  indictment  was  found  ;  ^  that  the 
court  capriciously  quashed  the  regular  venire  of  grand 
jurors,  and  without  any  authority  issued  a  special  venire, 
upon  which  the  grand  jury  which  found  the  indictment 
were  assembled  ;  •*  that  the  order  of  the  court  upon  the 
summoning  of  talesmen  to  serve  as  grand  jurors  was  an 
improper  interference  with  the  discretion  of  the  sheriff ;  ^ 
that  tales  grand  jurors  were  summoned  by  the  court  with- 
out authority  ;*^  that  an  illegal  number  of  grand  jurors  pre- 
sented the  indictment.^ 

iFinley  v.  State,  61  Ala.  201,  205;  Harrington  v.  State,  36  Ala.  23G; 
Davis  V.  State,  46  Ala.  SO;  Sanders  v.  State,  55  Ala.  183;  O'Byrnes  v. 
State,  51  Ala.  25;  Scott  v.  State,  63  Ala.  59;  Preston  v.  State,  63  Ala. 
127;  Berry  v.  State,  63  Ala.  126;  Finnegan  v.  State,  57  Ga.  427;  Miller 
V.  State,  33  Miss.  356;  State  v.  Harden,  2  Kich.  L.  533;  Jackson  v.  Com., 
13  Gratt.  795,  801 ;  Yehn  Jim  v.  Territory,  1  Wash.  T.  76. 

2  Harrington  v.  State,  36  Ala.  236;  Sanders  v.  State,  ,55  Ala.  183;  Jack- 
son V.  Com.,  13  Gratt.  795;  Shepherd  v.  State,  64  Iiid.43;  Keg.  v.Heane, 
9CoxC.  C.  433. 

3  State  V.  Harden,  2  Rich.  L.  533. 

4  O'Byrnes  v.  State,  51  Ala.  25. 

*Fiuley  v.  State,  61  Ala.  201;  Scott  v.  State,  63  Ala.  59. 

6  Preston  v.  State,  63  Ala.  127 ;  Berry  v.  State,  63  Ala.  126. 

T  Miller  v.  State,  33  Miss.  356;  People  v.  Thnrston,  5  Cal.  69.  But 
crmtra,  see  Coukey  v.  People,  1  Abb.  App.  Dec.  418;  Rex  v.  Marsh, 
G  Ad.  &  El.  236;  s.  c,  1  Ncv.  &  P.  187. 


§   553.]  OBJECTIONS  TO  THE  PANEL.  G21 

ARTICLE   V. 


OBJECTIONS    TO    THE    PANEL. 

SECTION. 

553.  The  same  Rules  applied  as  in  Case  of  a  Petit  Jury. 

554.  But  with  even  less  Stringency. 

555.  Illustrations  —  Irregularities  in  making  General  List  of  Jurors. 

(1.)  Preparation  by  other  than  Statutory  Officers. 
(2.)  Perfect  List  cannot  be  demanded. 
(3.)  Nor  that  the  List  be  certified. 
(4.)  Certificate  when  Conclusive. 

556.  Irregularities  in  Drawing  the  Panel. 

(1.)  Must  be  drawn  from  Jury  List. 
(2.)  Custody  of  Jury  Wheel. 
(3.)  Presence  of  Officers. 
(4.)  Statutory  Time  of  Drawing  Directory. 
(5.)  Statutory  Number  of  Panel  Directory. 
(6.)  Grand  and  Petit  Jury  Panels  may  be  drawn  simulta- 
neously. 
(7.)  Certificate  to  Drawing. 
(8.)  Drawing  anew. 

557.  Irregularities  in  Summoning. 

(1.)  Must  be  summoned  as  Grand  Jurors. 

(2.)  Statutory  Time  of  Summoning  Directorj\ 

(3.)  Defect  in  Grand  Jury  Process. 

(4.)  No  Process  Necessary. 

(5.)  Substitute  for  Sheriff  as  Summoning  Officer. 

558.  Substitute  for  Eegular  Grand  Juror. 

559.  "  Nomination  "  of  Grand  Jurors. 

560.  Amendment  of  Officer's  Eeturn. 

§  553.  The  same  liules  applied  as  in  Case  of  Petit 
Jui*y. —  The  rules  declared  in  a  former  chapter,  respecting 
the  right  of  objection  to  the  array  or  panel  of  the  petit  jury,^ 
are  not  varied,  where  the  exercise  of  that  right  is  permitted 
in  the  case  of  the  grand  jury.  In  certain  States  the  statutes 
regulating  the  making  of  the  jury  list,  and  the  drawing  and 
summoning  of  grand  jurors  are  expressly  declared  to  be 
directory   only.^      In    other    States,    this    rule,  when   not 

1  Chap.  IX. 

2  Code  Ala.  1876,  §  4759;    Gen.  Laws  Colo.  1877,  §  1473;  R.  C.  Miss. 
1880,  §  1672. 


&22  OBJECTIONS  TO  GRAND  JURORS.  [ClI.  XXVI. 

declared  by  statute,  is  nevertheless  adopted  bv  the  courts.^ 
Ill  Mississippi  the  array  can  be  challenged  "for  fraud" 
only.'^  Bv  a  similar  statute  of  Indiana  the  irregularity  to 
support  a  challenge  to  the  array  must  amount  to  corruption.^ 
Such  statutes  have  had  a  salutary  effect  in  diminishing  the 
number  of  challenges  to  the  array,  b}^  cutting  off  all  purely 
technical  objections.  Fraud  and  corruption,  it  is  almost 
unnecessary  to  say,  arc  never  presumed.  The  facts  consti- 
tuting either  must  be  shown;  and  in  this  connection,  it  is 
to  be  remembered  that  the  i)roceedings  of  the  board  who 
select  the  jury  are  presumed  to  be  correct,  until  the  con- 
trary is  clearly  shoAvn.'* 

§  554.  But  Avitli  Even  less  Stringency. —  In  view  of  the 
fact  that  the  finding  of  the  grand  jury  is  only  an  accusa- 
tion at  the  most,  it  is  not  surprising  that  courts  should 
not  be  astute  in  discovering  technical  irregularities  in 
the  process  of  procuring  this  jury.^  As  has  been  ob- 
served :  "  Whatever  occurs  in  regard  to  the  constitution  of 
the  grand  jury  is  really  a  matter  of  very  little  importance 
to  the  defendant.  It  is  fairly  to  be  supposed  that,  if  one 
grand  jury,  made  up  in  good  faith,  has  found  an  indict- 
ment, another  grand  jury,  upon  the  same  testimony,  would 
find  another  indictment ;  so  that  the  only  benefit  resulting 
to  the  defendant,  even  if  that  be  a  beneficial  result,  would 
be  a  delay  before  the  trial."®  An  additional  argument 
against  the  allowance  of  mere  technical  objections,  in  this 
connection,  is  found  in  the  fact  that  the  delay  in  finding  an 
indictment   in   a   particular  case    might    result    in    a   very 


1  State  V.  Ansaleme,  15  Iowa,  44;  State  v.  Caruey,  20  Iowa,  82;  State 
Brandt,  41  Iowa,  593;  State  v.  Seaborn,  4  Dev.  305;  State  v.  Haywood,  73 
N.  C.  437;  State  v.  Griffice,  74  X.  C.  31G.  And  see  illustrations,  ;wsf, 
§  555  et  seq. 

2R.  C.  Miss.  1880,  §  16G7. 

^  Meiers  v.  State,  50  Ind.  336;  Ward  v.  State,  48  Ind.2S9;  Behler  v. 
State,  22  Ind.  345;    Long  v.  State,  46  Ind.  582. 

<  Ward  V.  State,  48  Ind.  289. 

5  Dolan  V.  People,  64  N.  Y.  485,  494;  State  v.  Champeau,  52  Vt.  313. 

"  United  States  v.  Ambrose,  3  Fed,  Rep.  283,  287,  per  Swayne,  J.  See 
also  People  v.  Jewett,  3  Wend.  314,  324,  per  Marcy,  J. 


§   555.]  OBJECTIONS  TO  THE  PANEL.  623 

material  and  wholly  unconscionable  advantage  to  one 
charijed  with  crime.  The  statute  of  limitations  misfht  bar 
an  indictment  before  another  grand  jury  could  be  lawfully 
impanelled. 

§  555.  Illustrations — Irregularities  in  making'  General 
List  of  Jurors. — (1.)  Preparation  of  hy  other  than  Stat- 
utory Officers. —  It  is  not  a  sufficient  ground  for  a  challenge 
to  the  array  that  the  jury  list  was  prepared  by  de  facto 
commissioners  only.^  However,  it  is  clear  that  a  duty  of 
such  importance  and  gravity  cannot  be  relegated  to  a 
deputy  by  the  officer  charged  therewith.^  An  irregularity  of 
this  kind  is  regarded  as  something  more  than  an  immaterial 
departure  from  the  manner  of  doing  acts  specified  by  law.^ 
It  is  held  that  this  irregularity  is  not  cured  by  the  statutory 
officer  examining  the  work  of  his  deputy  and  approving  the 
result.* 

(2.)  Perfect  List  cannot  be  detnanded.  —  It  cannot  be 
demanded  that  the  drawing  shall  be  made  from  a  complete 
list  of  the  qualified  jurors,  or  as  large  a  list  as  the  law  re- 
quires to  be  selected.  Such  an  irregularity  must  be  re- 
garded as  a  technical  error,  which  does  not  affect  the  rights 
of  an  accused  person.^  Nor  is  any  injury  apparent,  where 
certain  of  the  jurors  are  selected  for  such  list  from  some 
source  other  than  as  directed  by  law,  as  where  the  statute 
required  the  grand  jury  list  to  be  made  up  from  the  petit 
jury  list,  and  names  appeared  on  the  former  which  were 
not  included  in  the  latter.  It  must  appear  that  the  pres- 
ence of  such  names  on  the  grand  jury  list  was  due  to 
fraud  or  desiorn.*^ 


1  Dohiii  V.  People,  64  N.  Y.  485. 

2  State  V.  Dutell,4  G.  Greene,  125. 

3  State  V.  Brandt,  41  Iowa,  593,  Beck,  J.,  dissenting;  Stokes  v.  State, 
24  Miss.  G21. 

*  Stokes  V.  State,  siipi-a;  Clare  v.  State,  30  Md.  1G4. 

5  State  V.  Carney,  20  Iowa,  82;  State  v.  Brandt,  41,  Iowa,  593;  People 
V.  Harriot,  3  Park.  C.  R.  112;  State  v.  Haywood,  73  N.  C.  437.  See 
ante,  §  47,  note. 

6  Dolan  V.  People,  64  N.  Y.  485.  See  also  Williams  v.  State,  55  Ga. 
391. 


624  OBJECTIONS  TO  GRAND  JURORS.  [CII.  XXVI. 

(3.)  Nor  that  the  List  he  (Jertijied. —  In  Iowa,  where 
the  lists  of  grand  and  petit  jurors  are  selected  by  the  judges 
of  election  in  the  several  townships  of  the  county,  and  sent 
in  with  the  election  returns,  it  is  not  sufficient  ground  for 
setting!:  aside  an  indictment,  that  certain  of  the  lists  ijoino;  to 
make  up  the  body  of  names  from  which  the  grand  jury  were 
drawn,  were  not  authenticated  by  a  formal  certificate  of  the 
judges.^  The  officers  who  have  omitted  the  certification 
may  perform  this  duty  after  an  objection  made  upon  this 
ground.^ 

(4.)  Certificate  ivhen  Conclusive. —  In  Alabama  and  Cal- 
ifornia, where  the  challenge  to  the  array  is  not  allowed  for 
any  matter  affecting  the  preparation  of  the  general  list  of 
jurors,  an  objection  will  not  be  heard,  in  any  form,  showing 
an  irregularity  in  the  selection  of  the  grand  jurors,  when 
the  record  of  the  court,  or  the  certificate  of  the  officers  to 
whom  the  trust  is  confided,  shows  that  the  same  was  regu- 
larly made.^ 

§  55G.  Irregularities  in  drawing  the  Panel. —  (1)  Must 
be  drawn  from  the  Jury  List. —  Where  the  officers  charged 
by  law  with  the  duty  of  preparing  the  general  list  of  per- 
sons qualified  as  grand  jurors  from  which  panels  are  to  be 
drawn  at  stated  periods,  wholly  fail  to  perform  such  duty, 
a  panel  cannot  be  drawn  from  another  list  of  residents  of 
the  county,  qualified  and  selected  for  petit  jury  duty.^ 

(2.)  Custody  of  Jury  Wheel. —  In  Pennsylvania  the 
statutes  point  out  with  particularity  the  manner  in  which 
the  jury  wheel  shall  l)e  secured  against  tampering.  It  must 
be  sealed  with  the  seals  of  two  jury  commissioners  and  of 
the  sheriff.  A  sealing  by  one  commissioner  only  will  not 
be  a  sufficient  compliance  with  the  statute.  An  indictment 
will  be  quashed  which  emanates  from  a  grand  jury  drawn 
from  the  wheel  thus  imperfectly  sealed.* 

1  State  V.  Ansaleme,  15  Iowa,  44. 

2  Mlkell  V.  State,  62  Ga.  368. 

estate  V.  Allen,  1  Ala.  442;   State  v.  Clarkson,  3  Ala.  378;  State  v. 
Brooks,  9  Ala.  9;  People  v.  Southwell,  46  Cal.  141,  151. 
<  Portls  V.  State,  23  Miss.  578. 
*  Brown  v.  Com..  73  Pa.  St.  321.     See  in  this  connection,  ante.,  §  142. 


§   556.]  OBJECTIONS  TO  THE  PANEL.  »i25 

(3.)  Presence  of  Officers. —  If  the  officers  required  by 
law  to  be  present,  actually  attend,  it  matters  not  whether 
they  do  so  in  obedience  to  notice  or  not.^ 

(4.)  Statutory  Time  of  Drawing  Directory.'^ — A  panel 
selected,  drawn  and  summoned,  Avhether  at  an  earlier  or 
later  day  than  prescribed  by  law,  must  be  deemed  legal, 
and  to  possess  the  power  to  perform  all  the  duties  belong- 
ing thereto.^  This  point  has  been  ruled  otherwise  by  the 
Supreme  court  of  Louisiana.  The  drawing  was  on  one  oc- 
casion made  thirty-two  days  before  the  meeting  of  the 
court,  instead  of  "  no  less  than  fifty,"  as  directed  by  the 
statute.  "  If,"  said  Manning,  C.  J.,  "  the  jury  commis- 
sion can  abridge  the  statute  time  at  all,  it  can  abridge  it  to 
as  short  a  time  as  may  suit  the  convenience  or  caprice  of  its 
members.  It  cannot  abridge  the  time  at  all.  More  than 
fifty  days  may  elapse  between  the  drawing  of  the  jury  and 
the  regular  time  for  the  opening  of  the  term,  but  not 
less."  *  But  it  is  believed  that  statutory  provisions  fixing 
the  time  of  the  drawing,  are  generally  regarded  as  purely  di- 
rectory. The  object  is  to  afford  the  summoning  officer  ample 
time  for  the  performance  of  his  duty,  and  to  afford  parties 
interested  an  opportunity  to  ascertain  the  qualifications  of  the 
jurors  drawn.  When  the  time  between  the  drawing  and  the 
sitting  of  the  court  is  sufficient  for  this  purpose,  no  rational 
ground  of  objection  can  be  discovered  in  the  allegation  that 
the  precise  day  and  hour  designated  by  the  statute  for  the 
drawing  was  not  observed. 

(5.)  Statutory  Number  of  Panel  Directory.^ — It  is  held 
that  a  statute  fixing  the  number  of  the  panel  is  so  purely 
directory  that  the  accused  can  derive  no  advantage  from  a 
failure  to  comply  with  it.  Upon  this  point  the  New  York 
Court  of  Appeals,  in  a  recent  case,  say:  "This  precise 
number  is  fixed  by  the  statute  for  no  purpose  of  benefit  or 

1  People  V.  Gallagher,  55  Cal.  462. 

2  See  ante,  §  145. 

»  Bales  V.  State,  63  Ala.  30. 

^  State  V.  Smith,  31  La.  An.  406. 

5  See  ante,  §  79,  subsec.  2. 

(40) 


626  OBJECTIONS  TO  GRAND  JURORS.  [CH.  XXVI. 

advantage  to  the  persons  who  may  l)e  presented  for  indict- 
ment. The  sole  object  of  requiring  this  number  is  to  se- 
cure the  attendance  at  court  of  a  sufficient  number  to  con- 
stitute a  grand  jury.  If  more  or  less  should  be  drawn,  no 
harm  would  be  done  any  accused  person,  provided  a  suffi- 
cient number  of  qualified  jurors  were  drawn  and  im- 
panelled." ^  This  point  has  been  ruled  otherwise  by  the 
Supreme  Court  of  Mississippi.^  However,  in  that  State, 
such  a  deviation  from  the  statute  cannot  be  shown  in  arrest 
of  judgment.^ 

(6.)  Grand  and  Petit  Jury  Panels  way  he  drawn  sim- 
ultaneously.—  The  officers  charged  with  the  drawing  of  a 
panel  of  grand  jurors,  and  at  the  same  time  a  panel  of 
petit  jurors,  may  make  both  drawings  at  one  and  the  same 
time,  placing  the  names  drawn  alternately  on  the  several 
panels,  according  to  their  respective  localities  and  standing 
in  the  county.* 

(7.)  Certificate  to  Praiving. —  The  Alabama  court  holds 
the  certificate  of  the  officers  charged  with  conducting  the 
drawing  to  be  conclusive  of  the  regularity  of  the  proceed- 
ings.* The  statutes  generally  require  this  list  to  be  deliv- 
ered to  the  clerk  of  the  court,  the  object  being  that  this 
officer  may  know  what  names  ought  to  be  inserted  in  the 
writ  to  be  delivered  to  the  sheriff.  If  the  clerk  has  other 
means  of  authentic  information  than  such  certificate,  and 
the  panel  of  jurors  in  fact  drawn  is  summoned,  it  can  be 
of  no  consequence  whatever  that  the  list  was  not  filed  as 
required  by  law.  A  majority  of  the  early  Iowa  court  held 
to  the  contrary  ;  that  a  failure  to  file  such  list  was  fatal  to 
all  subsequent  proceedings  of  the  grand  jury  formed  from 
the  panel.     The  dissenting  opinion  of  Mason,  C.  J.,  how- 


1  Dolan  V.  People.  64  N.  Y.  485,  493. 

2  Leathers  v.  State,  26  Miss.  73. 

«  Byrd  v.  State,  1  How.  (Miss.)  247;  Green  v.  State,  28  Miss.  687. 

*  Dotson  V.  State,  62  Ala.  141.  See  in  this  connection,  Crane  v.  Dy- 
gert,  4  Wend.  675;  Gardner  v.  Turner,  9  Johns.  260. 

5  State  V.  Brooks,  9  Ala.  9.  See  also  State  v.  Allen,  1  Ala.  442;  State 
V.  Clarkson,  3  Ala.  378. 


■§   557.]  OBJECTIONS  TO  THE  PANEL.  627 

•ever,  is  believed  to  be  an  accurate  statement  of  the  law  as 
it  is  now  viewed.^ 

(8.)  Drawing  anew. —  Although  there  would  seem  to  be 
no  objection  to  the  return  into  the  box  of  the  names  drawn, 
■upon  the  discovery  of  an  informality  in  the  process,  and  a 
new  drawing  in  such  a  case  would  doubtless  be  regular,  the 
■officers  cannot  properly,  of  their  own  caprice,  return  to  the 
box  the  whole  or  a  portion  of  the  names  drawn.  Such  con- 
duct was,  on  one  occasion,  strongly  rebuked,  but  held  not  to 
vitiate  an  indictment  found  by  a  grand  jury  so  drawn,  be- 
-cause  it  appeared  that  no  actual  wrong  was  done  or  in- 
tended.^ 

§  557.  Irregvilarities  in  Suiuinoning-. —  (1-)  Must  be 
■summoned  as  Grand  Jwors. —  A  grand  jury,  formed  from 
a  panel  of  twenty-four  persons,  summoned  as  trial  jurors, 
is  an  illegal  body,  and  wholly  unauthorized  to  act.^ 

(2.)  Statutory  Time  of  Summoning  Directory}  —  The 
statutory  provision,  requiring  grand  jurors  to  be  summoned 
within  at  least  a  certain  number  of  days  preceding  the  first 
day  of  the  term  at  which  they  are  to  serve,  is  merely  direc- 
tory to  the  summoning  officer.  Such  a  statute  is  for  the 
convenience  of  jurors,  that  they  may  have  sufficient  notice 
■of  the  service  required  of  them.  The  time  of  summoning 
jurors,  except  so  far  as  their  own  convenience  is  concerned, 
is  quite  an  immaterial  thing,  which  can  in  no  wise  affect 
their  official  acts.^ 

(3.)  Defects  in  Grand  Jury  Process. —  Upon  this  point 
we  find  the  same  unhappy  conflict  of  authority  which  we 
have  previously  noticed  in  respect  to  jury  process  for  se- 
curing the  attendance  of  petit  jurors.*^  Thus,  it  is  said 
that  a  grand  jury,  summoned  without  a  precept  to  the 
sheriff,  cannot   be  legally  impanelled ;    that  from   such  a 

1  United  States  v.  Cropper,  Morris,  190. 

2  State  V.  Martin,  82  N.  C.  672. 

3  People  V.  Earnest,  45  Cal.  29. 
■*  See  ante^  §  78,  subsec.  3. 

5  Johnson  v.  State,  33  Miss.  363.    See  also  Weeks  v.  State,  31  Miss. 
490;  State  v.  Smith,  67  Me.  328;  State  v.  Clayton,  11  Rich.  L.  581,  592. 
«  Ante,  §  70. 


(i28  OBJECTIONS  TO  GRAND  JURORS.  [CH.  XXVI, 

body  a  grand  jury  cannot  be  organized,  whose  presentments 
are  sufficient  to  put  a  defendant  on  trial  ;  ^  that  persons 
selected  as  grand  jurors,  under  a  venire  without  a  seal,  have 
no  authority  to  act  in  that  capacity,  although  impanelled 
and  sworn  in  court  without  objection.^ 

We  have  before  endeavored  to  show  that  such  decisions- 
are  based  upon  an  imperfect  view  of  the  law.  They  leave 
out  of  consideration  the  substantial  object  of  the  process, 
and  look  only  to  the  manner  of  performance.  That  object 
is  to  notify  persons  lialile  to  serve  as  grand  jurors  to  attend 
at  the  time  and  place  appointed  for  the  performance  of  that 
service.  When  the  writ  has  been  executed  and  returned,  it 
is  functus,  officio.  If  so  defective  as  not  to  have  answered 
the  purpose  designed,  that  of  giving  the  persons  intended 
to  be  summoned,  the  requisite  legal  notice,  this  may  be  a 
good  excuse  for  their  failure  to  attend  ;  or  the  sheriff  doubt- 
less might  refuse  to  execute  the  venire,  if  not  issued  in 
technical  legal  form.'^  But  these  are  the  only  persons  who, 
under  the  present  system  of  procuring  jurors,  ought  to  be 
heard  to  allege  defects  in  the  process  by  which  they  were 
brought  into  court. ^ 

Accordingly,  it  is  held  that  the  prisoner  cannot  object 
that  no  order  for  the  venire,  as  directed  by  statute,  was 
made  by  the  court  f  nor  that  the  writ  was  neither  under 
the  seal  of  the  court  nor  bore  the  teste  of  any  justice 
thereof.^  A  fortiori ,  such  a  sealing  as  is  usually  practiced,, 
a  small  piece  of    paper  attached  to  the  writ  by  a  wafer,. 

1  Nicholls  V.  State,  5  N.  J.  L.  539;  Chase  v.  State,  20  N.  J.  L.  218. 

2  State  V.  Lightbody,  38  Me.  200;  State  v.  Flemmin^,  66  Me.  142.  In. 
this  case  Barrows,  J.,  concurred  with  the  rest  of  the  court,  but  only  on 
the  principle  of  stare  decisis.  "  I  do  not  see  how  it  is  possible,"  said  he, 
"  that  any  substantial  right  of  a  person  charged  with  crime  could  be 
prejudiced  by  such  a  defect,  or  how  it  concerns  him,  any  more  than  it 
would  to  know  whether  the  grand  juror  came  to  court  on  foot  or  on. 
horseback."     66  Me.  153. 

3  Pierce  v.  State,  12  Tex.  210;  Johnson  v.  State,  33  Miss.  363. 
*  Ante,  §  70. 

»  Hess  V.  State,  73  Ind.  537. 

6  State  V.  Bradford,  57  X.  H.  188;  Maher  v.  State,  1  Port.  265;  White- 
V.  Cora.,  6  Binn,  179. 


§   557.]  OBJECTIONS  TO  THE  PANEL.  629 

above  the  clerk's  name,  is  sufficient.^  From  what  has  pre- 
viously been  said,  it  will  be  apparent  that  the  objection 
-of  one  accused  of  crime,  that  the  writ,  upon  which  the 
grand  jurors  are  brought  into  court,  describes  them  in  re- 
spect to  their  christian  names  by  the  initial  letters  only, 
is  too   frivolous  for  consideration.^ 

(4.)  No  Process  Necessary. —  The  inutilit}^  of  all  ol)jec- 
tions  like  the  foregoing  clearly  appears  when,  upon  good 
authority,  it  is  held  that  a  juror's  attendance  and  service  is 
proper,  although  his  name  appears  in  no  part  of  the 
process,  provided  he  has  been  regularly  drawn  and  duly 
summoned  by  the  officer  having  the  execution  of  the  writ  in 
charge.^  But  such  cases  are  to  be  distinguished  from  those 
where  the  jurors  are  brought  in  upon  a  special  venire,  for 
the  issue  of  which  the  court  was  without  authority.  Such 
a  body  is  clearly  incapable  of  acting  as  a  grand  jury.* 

(5.)  Substitute  for  Sheriff  as  Summoning  Officer  J' — 
When  a  criminal  charge  is  pending  against  the  sheriff,  the 
court  may  instruct  the  grand  jury  summoned  by  that  offi- 
cer not  to  consider  this  charge,  and,  after  the  discharge  of 
the  regular  grand  jury,  may  direct  a  special  grand  jury  to 
be  summoned  by  the  coroner,  instead  of  the  sheriff,  for  the 
purpose  of  investigating  such  charge."  At  such  a  term, 
after  the  exhaustion  of  the  panel  summoned  by  the  sheriff, 
the  court  has  no  power  by  virtue  of  the  interest  of  the 
sheriff,  to  direct  the  summoning  of  talesmen  by  the  coroner. 
■"  Other  persons,"  said  the  Supreme  Court  of  California  in 
this  case,  "  whose  rights  are  to  be  affected  by  judicial  pro- 
ceedings, have  a  right  to  insist  that  he  [the  sheriff]  shall 
still  perform  the  duties  assigned  by  law  to  the  incumbent  of 
.the   office."  ^     However,  it    must  be  observed    that  statu- 


1  State  V.  Thayer,  4  Strob.  L.  286. 

2  State  V.  Stednian,  7  Port.  495.     See  also  Stone  v.  State,  30  Ind.  115. 

3  Johnson  v.  State,  33  Miss.  363,  364;  Patterson's  Case,  6  Mass.  486. 
<  Baker  v.  State,  23  Miss.  243. 

*  See  ante.,  §  82. 

«  People  V.  Southwell,  46  Cal.  141,  151. 

•7  People  V.  Soutli\vell,46Cal.  141,  153. 


630  OBJECTIONS  TO  GRAND  JURORS.  [CH.  XXVI ^ 

tory  challenges  to  the  panel  are  generally  regarded  as  ex- 
elusive  of  all  others.  Therefore,  if  the  statutes  do  not 
afford  the  means  of  enforcing  the  right  here  conceded  by  a 
challenge  to  the  panel,  this  can  be  done  in  no  other  way.^ 

§  558.  Substitutes  for  Regnilar  Jurors. —  A  plea  in 
abatement  will  be  sustained,  which  shows  that  the  sheriff 
omitted  to  summon  one  of  the  jurors  as  directed,  but  sum- 
moned another  person  in  his  stead. ^  And  it  is  even  held, 
that  the  court,  in  the  absence  of  statutory  authority  for  such 
a  course,  cannot  lawfully  accept  substitutes  for  jurors  reg- 
ularly drawn  and  summoned.  The  jurors  must  be  brought 
in,  either  upon  the  regular  venire  facias,  or  one  of  the 
other  modes  provided  by  law,  to  supply  a  deficiency  caused 
by  the  non-attendance  of  a  sufficient  number  of  the  original 
panel,  namely,  the  special  venire,  or  the  tales. ^  The  proper 
practice  in  such  a  case  undoubtedly  is  for  the  court  to  ex- 
cuse jurors  presenting  sufficient  reasons,  and  then  order  the 
deiiciency  in  the  panel  to  be  tilled  in  due  form.  The  Su- 
preme Court  of  Iowa,  while  holding  the  acceptance  of  sub- 
stitutes to  be  an  irregularity,  do  not  regard  it  as  of  sufficient 
importance  to  support  a  motion  to  set  aside  an  indictment 
found  thereafter  by  the  grand  jury  so  constituted.*  Since 
the  decision  in  Scarlet's  case,*  it  has  never  been  doubted 
that  the  presence  of  one  who,  through  fraud,  is  substituted 
upon  the  panel  in  the  place  of  a  regular  juror,  will  vitiate 
any  indictment  found  by  the  grand  jury  so  tainted  in  its 
constitution.  This  objection  may  be  made,  even  after  con- 
viction, and  it  is  no  answer  to  say  that  there  were  enough 
qualified  members  of  the  panel  to  have  found  the  indict- 
ment without  his  concurrence  ;  for  non  constat  but  that 
twelve  only  concurred  in  the  finding,  of  which  the  interloper- 
was  one.^ 


'  People  V.  Southwell,  supra. 

2  State  V.  Cantrell,  21  Ark.  127. 

3  Rawls  V.  State,  8  Smed.  M.  599. 

*  State  V.  Howard,  10  Iowa,  101 ;  State  v.  Fowler,  52  Iowa,  103. 
«  12  Coke  Eep.  98.    See  ante,  §§  527,  528. 

*  Com.  V.  Davis,  MS.  cited  in  Com.  v.  Parker,  2  Pick.  559. 


§  5(30.]  OBJECTIONS  TO  THE  POLLS.  631 

§  559.  '•  Nomination  "  of  Grand  Juror.' — In  a  former 
chapter  we  have  seen  that  a  particuhir  grievance  aimed  at 
by  the  statute  of  11  Hen.  IV.,  c.  9,  was  that  indictments 
were  found  by  grand  juries  "  without  due  return  of  the 
sheriff."  ^  In  Virginia  this  statute  is  regarded  as  being  in 
affirmance  of  the  common  hiw.^  Nevertheless,  the  courts 
of  that  State  hold  that,  when  it  becomes  the  duty  of  the 
sheriff  to  select  a  panel  of  grand  jurors  in  his  discretion,  it 
affords  no  ground  for  a  plea  in  abatement,  that  one  of  the 
body  finding  the  indictment  procured  himself  to  be  nomi- 
inated  as  a  grand  juror.  It  must  be  shown  that  the  nom- 
ination was  corrupt.* 

§  560.  Amendment  of  Officer's  Return. —  Indictments 
have  been  quashed,  because  the  return  of  the  sheriff  was 
unsigned,  and  showed  neither  that  the  list  of  names  upon 
the  return  was  that  of  the  grand  jurors,  nor  by  what 
authority  they  were  summoned,^  as  well  as  for  the  omission 
of  other  particulars  essential  to  a  full  return.''  But  the 
better  procedure  would  seem  to  be  to  direct  the  sheriff  to 
amend  his  return  in  such  a  manner  that  it  will  be  sufficient 
in  law.^ 


ARTICLE  VI. 


OBJECTIONS  TO    THE    POLLS. 

SECTION. 

563.     Grand  J vwovsi  prima  facie  Competent. 
5G4.     Alienao;e. 


1  See  ante.  §  133. 
■''  Ante,  §  528. 

3  Com.  V.  Cherry,  2  Va.  Cas.  20, 

*  Thompson's  Case,  4  Leigh.  667;  Com.  v.  Cherry,  supra. 
^  State  V.  Arrow-smith.  MS.  cited  in  State  v.  Rickey,  9  N.  J.  L.  293,  299. 
See  also  Chase  v.  State,  20  N.  J.  L.  218. 

6  Com.  V.  Eaton,  6  Binney.  447. 

7  State  V.  Rickey.  9  N.  J.  L.  293;  State  v.  Clougli.  49  Me.  573;  Com. 
V.  Parker,  2  Pick.  549;  Com.  v.  Chauncey,  2  Ashm.  90;  Fitzhugh's  Case, 
Cro.  Jae.  527. 


032  OBJECTIONS  TO  GRAND  JURORS.  [CH.  XXVI. 

505.    For  want  of  Statiitoiy  QiialiHoations  —  Not  a  Freeholder. 
5GG.     For  Statutor}'  Disqnalitication. 

(1.)  Obnoxious  Occupation. 

(2.)  Rebellion  against  the  United  States. 

(3.)  Tarty  to  a  Pending  Suit. 

567.  Juror  not  of  Selected  List. 

568.  Prior  Service. 

569.  Consanguinity  or  AHuuty  to  Defendant. 

570.  Public  Interest. 

571.  Private  Interest. 

572.  Contribution  for  Suppression  of  Crime. 

573.  Conscientious  Scruples  against  Capital  Punishment. 

574.  Expression  of  Opinion. 


§  5()3.  Grand  Jiu'ors  Prima  Facie  Competent.  —  When 
grand  jurors  are  duly  drawn,  and  appear  upon  the  summons 
of  the  sheriff  by  virtue  of  his  writ,  they  are  presumed  to  be 
good  and  hiwful  men,^  in  all  respects  legally  qualified.^  It 
is  only  upon  good  cause  shown,  by  a  party  having  the  right 
to  question  the  qualifications  of  the  individual  juror,  that  he 
will  be  set  aside  for  incompetency. 

§  564.  Alienage.^  —  Wherever  the  disqualiUcation  of  a 
particular  juror  of  the  body  finding  the  indictment  will 
cause  it  to  abate,  it  seems  clear  that  alienage  is  as  pointed  a 
cause  of  disqualification  in  the  case  of  grand  as  of  petit 
jurors.^  Howcvei",  under  a  statute  of  Indiana,  requiring 
grand  jurors  to  be  "  good,  reputable  freeholders  or  house- 
holders, resident  of  the  county  in  which  they  are  selected, 
and  taxable  therein,"^  it  was  held  that  an  indictment  could 


^  'Jhc  sunnnoning  oflicer's  retin-n  need  not  state  that  they  are  good  and 
lawful  men  of  the  county.     Weeks  v.  State,  31  Mi.'.s.  490. 

2  Thayer  v.  Peoi)le,  2  Doug.  417;  State  v.  Haynes,  54  Iowa,  109;  Minor 
V.  State.  63  Ga.  318.     Contra,  Ligon  v.  State,  7  Port.  167. 

3  See  anti\  §  176. 

*  State  V.  Cole,  17  Wis.  674;  Eaganthall  v.  Com.,  11  Bush.  457.  Under 
the  Criminal  Code  of  Kentucky,  allowing  a  defendant,  before  pleading 
to  the  indictment,  to  move  to  set  it  aside  for  "  substantial  error  in  the 
summoning  or  formation  of  the  grand  jur}',"  it  may  be  shown  with  this 
effect  that  one  of  the  grand  jurors  did  not  possess  each  of  the  (jiialifica- 
tions  prescribed  by  the  statutes.     Com.  v.  Smith.  10  Eusji.  477. 

5  R.  S.  Ind.,  1843,  ch.  50,  §  2. 


§   565.]  OBJECTIONS  TO  THE  POLLS.  633 

not  be  objected  to  because  one  of  the  grand  jurors  who 
found  it  was  an  alien. ^ 

§  565.    Foi' Want   of  Statutory   Qiialiftcations  —  Not  a 

Freeholder.'^ — Contrary  to  the  rule  established  in  the  case 
of  petit  jurors,^  the  Alabama  court  early  held  that  if  a 
grand  juror  was  possessed  of  the  qualilications  demanded 
by  law,  at  the  time  his  name  was  put  upon  the  general  list 
of  persons  qualified  for  jury  service,  he  is  entitled  to  serve, 
although  he  may  have  parted  with  some  of  the  necessary 
qualifications  previous  to  the  time  he  is  drawn  for  service.* 

In  contemplation  of  a  statute  prescribing  a  qualification 
of  freehold  for  grand  jurors,  a  person  is  so  qualified,  al- 
though he  has  executed  a  deed  of  trust  of  all  land  owned 
by  him  in  the  county,  for  the  purpose  of  securing  the  payment 
of  a  debt,  and  although  the  day  of  payment  named  therein 
has  passed,  provided  the  grantor  remains  in  possession.^ 

One  in  possession  of  lands  as  vendee,  paying  therefor  in 
installments,  the  deed  being  held  in  escrow  until  such  pay- 
ments are  all  made,  has  been  regarded  as  having  the  qualifi- 
cations of  freehold."  But,  in  a  later  case,  the  same  court 
was  divided  in  opinion  as  to  whether  a  person  was,  for  the 
purposes  of  the  statute,  vested  with  the  qualification  of 
freehold,  who  was  in  possession  of  land  under  a  contract 
for  purchase,  having  refused  to  accept  a  conveyance  ten- 
dered to  him,  and  who  had  instituted  a  suit  in  equity  to 
determine  the  sufficiency  of  the  title. ^  However,  a  pur- 
chaser of  land  by  a  parol  contract,  who  is  in  possession  and 
has  paid  the  purchase  money,  is  to  be  regarded  as  a  free- 
holder, although  a  writ  of  right  brought  against  him  by  a 
third  person  for  the  recovery  of  the  land  is  pending.''     The 


1  State  V.  Taylor,  8  Blackf .  178. 
-  See  ante^  §  174,  subsec.  4. 

3  Ante.  §  174. 

4  State  V.  Middleton,  5  Port.  484;  State  v.  Ligon,  7  Port.  1G7. 
6  Com.  V.  Carter,  2  Va.  Cas.  319. 

«  Com.  V.  Burdier,  2  Kob.  (Va.)  82G. 

"^  Kerbj'  v.  Cohi.,  7  Lei<^h,  747. 

*  Com.  V.  Cunningham,  6  Uratt.  695. 


634  OBJECTIONS  TO  GRAND  JURORS.  [CII.  XXVI, 

freehold  must  bo  of  the  county  in  which  the  court  is  held.^ 
§  5()6.  For  Statutory  Disqualitioations. — {  \ .)  Obnoxious 
Occupation. — Under  the  law  of  Virginia,  tavern-keei)ers 
were  early  disqualitied  for  service  as  grand  jurors.  One 
having  a  partnership  interest  in  a  tavern  was  nevertheless 
held  to  be  a  competent  grand  juror,  it  appearing  that  the 
active  manao^emcnt  of  the  house  was  rele^jjated  to  his 
partner.'^ 

(2.)  Rebellion  against  the  General  Government. — The 
disqualification  pronounced  by  §  820  of  the  Revised  Stat- 
utes of  the  United  States,  namely:  "without  duress  and 
coercion  to  have  taken  up  arms,  or  to  have  joined  any  in- 
surrection against  the  United  States  ;  to  hav^e  adhered  to  any 
insurrection,  giving  it  aid  and  comfort,"  etc.,  was  at  one^ 
time  regarded  as  absolute,  and  not  resting  in  the  discretion 
of  the  prosecuting  officer ;  for  which  reason  this  o])jectioii 
might  be  made  to  grand  jurors,  either  by  challenge  or  by 
plea  in  abatement.^  But  this  view  has  been  overruled,* 
and  now  the  statute  itself  stands  repealed.^ 

(3.)  Party  to  a  Pending  /Suit/' — The  statutes  of  North 
Carolina  provide,  in  respect  of  the  drawing  of  the  panel  of 
grand  jurors,  that  "  if  any  of  the  jurors  drawn  have  a  suit 
pending  and  at  issue  in  the  Superior  Court,  the  scrolls  with 
their  names  must  be  returned  into  i)artition  No.  1,  of  the 
jury  box."  ''  This  section  is  regarded  as  creating  a  positive 
disqualification  in  the  case  of  such  jurors.  Accordingly,  an 
indictment  was  quashed,  upon  motion,  where  one  of  the 
grand  jury  by  whom  it  was  presented  was  obnoxious  to  the 
statute.^     And  later  it  was  held  that  the  defendant  was  not 

1  Wills  V.  State,  69Ind.  28G. 

^  Com.  V.  Willson,  2  Leigh,  739.    See  also  Wysor  v.  Com.,  6  Gratt.  711  ► 

'  United  States  v.  Hammond,  2  Woods,  197;  United  States  v.  Butler,  1 
Hughes,  457. 

*Rnrt  V.  Panjaud,  99  U.  S.  180;  Atwood  v.  Weems,  99  U.  S.  183. 

5  By  Act  of  .June  30,  1879.  See  Sess.  Laws  U.  S.  1879  (Sess.  L"),  ch. 
.52,  §  2;  21  U.  S.  Stat,  at  Large,  43. 

^  See  ante,  §  180,  subsec.  1. 

7  Bat.  Rev.,  ch.  17,  §  229  r/, 

s  State  V.  Liles,  77  N.  C.  496. 


§  567.]  OBJECTIONS  TO  THE  POLLS.  635" 

even  required  to  show  affirmatively  that  one  of  the  panels 
subject  to  this  objection,  was  present  and  participated  in  the 
deliberations  of  the  grand  jury  when  the  bill  was  found. ^ 
These  decisions  seem  to  be  open  to  criticism.  1.  It  is  not 
clear  that  the  statute  in  question  is  anything  more  than  di- 
rectory to  the  officers  who  conduct  the  drawing.-  2.  If  it 
creates  a  disqualification  in  the  case  of  such  jurors,  the  de- 
fendant ought,  upon  the  principle  that  dilatory  pleas  are 
not  favored,^  to  show  that  the  neglect  of  the  officers  drawing 
the  panel  has  operated  to  his  prejudice,  namely,  that  one  or 
more  jurors  thus  disqualified  were  of  the  grand  jury  by 
whom  the  indictment  assailed  was  presented. 

§  567.  Juror  not  of  Selected  List. —  The  Supreme 
Court  of  Texas  early  held  that  the  circumstance  that  the 
name  of  one  of  the  grand  jurors  by  whom  an  indictment 
was  presented  did  not  appear  upon  the  general  list  of  jurors 
selected  by  the  county  authorities,  would  vitiate  any  indict- 
ment found  by  the  body  with  which  he  deliberated.*  But 
later  this  view  was  properly  repudiated.^  Of  such  a  juror 
Mr.  Justice  Swayne  observed  in  a  late  case  :  ^  "  His  name 
was  in  the  venire,  and  there  is  no  imputation  that  it  was 
put  there  in  bad  faith.  There  is  no  light  thrown  upon  the 
subject,  as  to  how,  or  why,  or  wherefore,  or  under  what 
circumstances  it  was  put  there.  His  name  was  regularly  in 
the  venire,  and  the  marshal  had  no  choice  but  to  serve  him  :. 
and  it  is  not  contended  that  he  had  not  the  qualifications 
required  by  law.  He  assisted  in  finding  the  indictment,, 
and  it  is  before  the  court.  Now,  I  think,  that  this  fact 
comes  Avithin  the  category  of  mere  irregularities  which  will 
not  be  permitted  to  vitiate  the  entire  action  of  the  grand 


1  State V.  Smith,  SON.  C.  410. 

2  See  State  v.  Cox,  52  Vt.  471 ;  United  States  v.  Reeves,  3  Woods,  19!).. 
^Ante,  §  §  534,  535. 

*  State  V.  Jacobs.  6  Tex.  99. 

«  State  V.  Malum,  12  Tex.  283;  Vaiiliook  v.  State,  12  Tex.  252.  271. 
6  United  States  v.  Ambrose,   (U.  S.  Cir.  Ct.  S.  D.  Ohio,  May.  1880),. 
3  Fed.  Rep.  283. 


(536  OBJECTIONS  TO  GRAND  JURORS.  [('II.  XXVI. 

jury,  luul  I  therefore  say  that,  so  far  as  that  point  is  con- 
cerned, I  feel  warranted  in  overruling  it."  ' 

§  5(i8.  Prior  Service.- — A  statute  forl)iddina"  the  name 
of  a  person  once  drawn  as  a  juror  to  be  again  put  into  the 
jury  box  witliin  two  years,  does  not  so  far  disqualify  a  per- 
son whose  name  is  drawn  within  that  time,  that  an  indict- 
ment found  by  a  grand  jury,  of  which  the  person  so  drawn  is 
a  member,  will  be  thereby  rendered  invalid,  although  such 
juror  may  be  challenged.'^ 

§  5GH.  C<nisansuiiiity  or  Afliiiity  to  Defendant.'* — Upon 
a  plea  in  abatement,  a  defendant  will  not  be  heard  to  allege 
that  one  of  the  grand  juiy  Avhich  found  the  indictment  was 
related  to  him  within  the  prohibited  degrees  of  affinity. 
Such  an  objection  comes  with  exceeding  ill  grace  from  an 
indicted  person.  If  the  relationship  had  any  influence 
whatever  upon  his  finding,  it  must  have  been  unfavorable 
to  the  State.'''  "  The  law  presumeth,"  says  Lord  Coke, 
"  that  one  kinsman  doth  favor  another  before  a  stranijer."  ^ 

§  570.  Public  Interest. — It  cannot  be  objected  to  an  in- 
dictment found  in  a  municipal  court,  having  exclusive 
jurisdiction  of  the  case  (an  offense  for  which  the  law 
annexes  a  fine  to  the  use  of  the  town),  that  the  foreman  of 
the  grand  jury  which  found  the  indictment  was  a  tax-payer 
in  such  munici[)ality.  The  accused  must  be  indicted  by 
jurors  of  the  town,  if  at  all."  Clearly  too,  if  one  of  the 
grand  jurors  who  piesent  a  bill  of  indictment  against  a 
town  for  not  making  and  opening  a  road,  is,  at  the  time,  a 
rateable  inhabitant  of  such  town,  this  circumstance  fur- 
nishes no  ground  for  quashing  the  indictment  :  for  the 
mind  of  the  juror,  if  biased  at  all,  must  have  l)een  in  favor 
of    the    town.**      In    general,    it    is    to    be    observed,    that 

'  United  Stiites  v.  Ambrose,  3  Fed.  Rep.  283,  287. 

-  See  ante,  §  183. 

'^  State  V.  Cox,  52  Vt.  471 ;  United  States  v.  Reeves,  3  Woods,  199. 

*  See  ante,  §  178. 

5  State  V.  Maddox,  1  Lea  (Tenn.),  G71.     See  in  this  connection.  State 
V.  Newfane,  12  Vt.  422. 

6  Co.Litt.  I.i7.  a. 

"  Com.  V.  Ryan,  .5  Muss.  90. 
■^  State  V.  Xewfane,  12  Vt.  422. 


§   571.]  OBJECTIONS  TO  THE  POLLS.  637 

although  this  objection  of  interest  on  the  ground  that  the 
juror  is  one  of  a  public  body  to  be  benefitted  or  injured  I)y 
the  event  of  the  case,  was  good  at  common  law,  yet  it 
is  now  almost  wholly  abrogated  by  express  statutory  pro- 
visions, or  by  necessary  implication  from  other  statutes  de- 
fining the  jurisdiction  of  courts.^ 

§  571.  Private  Interest.^ — To  an  indictment  for  em- 
bezzling the  money  of  a  bank,  a  plea  in  abatement  was 
entered,  alleging  that  one  of  the  grand  jurors  which  found 
the  indictment  was  a  stockholder  in  said  bank,  and  pos- 
sessed a  large  amount  of  its  promissory  notes,  and 
therefore  was  greath^  interested  in  procuring  the  indict- 
ment in  question.  This  was  held  bad  upon  a  general 
demurrer.  Such  a  juror  cannot  be  said  to  be  interested  in 
the  event  of  the  prosecution.  He  can  neither  gain  nor  lose 
by  a  conviction  or  acquittal  of  the  accused.  "  He  is  not 
interested  beyond  that  common  interest  which  every 
member  of  society  must  feel  in  the  conviction  of  such 
persons  as  offend  against  the  peace,  the  order  and  well 
being  of  society.*  " 

There  is  no  principle  (although  sometimes  there  is  an 
exception  in  the  oath  of  the  grand  jurors),  which  prevents 
them  from  finding  an  indictment  against  one  of  their  own 
body.^  When  a  charge  is  made  against  a  grand  juror,  he 
ought  to  derive  no  advantage  from  the  fortuitous  circum- 
stance that  he  is  a  member  of  the  body  by  whom  that 
charge  must  be  investigated.  It  would  seem  that  the  court 
has  power  to  direct  his  temporary  exclusion  in  such  a  case. 
However,  where  the  obnoxious  juror,  refused  to  withdraw, 
it  was  on  one  occasion  ruled  that  the  court  could  not  com- 
pel him  to  do  so.  At  the  same  time  the  jury  were  charged 
to  "proceed  in  their  duty,  and  it  Avill  be  their  concern  to 
see  that  the  juror's  conduct,  which  is  certainly  calculated  to 

1  State  V.  Newfane,  12  Vt.  422.     See  also  ante,  §  179, 
'^  See  ante,  §  180. 

3  Ford,  J.,  in  State  v.  Rickey,  10  N.  J.  L.  83, 85.     Compare  cmte,  §  179, 
subsec.  3. 
*  Add.  (Pa.)  App.  45 ;  Com.  v.  Strother,  1  Va.  Cas.  18G. 


<)38  OBJECTIONS  TO  GKAND  JURORS.      [CH.  XXVI. 

impress  an  uiifavonible  opinion  of   him,  docs  not  enter  into 
their  decision  upon  his  case."  ^ 

§  572.  Contribution  lor  Suppression  of  Crime. —  A 
prejudice  against  crime,  an  expression  of  a  determination 
to  break  up  an  uiihiwful  traffic,  and  a  contril)ution  of  funds 
for  this  purpose,  do  not  disqualify  one  otherwise  competent 
to  serve  as  a  grand  juror.  *'  Zeal  displayed  in  a  purpose  to 
put  down  a  certain  kind  of  offence,  often  repeated,  is  not  a 
bias  against  any  particular  individual.  A  desire  to  enforce 
the  laws  is  commendable,  rather  than  the  reverse.  It  is  to  do 
this  that  the  grand  jury  is  organized,  in  order  that  they  may 
discover  and  present  those  persons  who  have  been  guilty  of 
crime.  They  do  not  try  and  convict  the  offender.  That  is 
left  for  another  body,  Avith  regard  to  whom,  and  against 
:any  feeling  they  may  entertain,  the  accused  is  sufficiently 
protected."  ^ 

§  57o.  Conscientious  Scruples  against  Capital  Punish- 
ment.^—  Grand  jurors  who  are  about  fo  investigate  a  charge 
of  murder,  may  be  challenged  by  the  prosecuting  officer,  if 
they  cannot,  in  conscience,  tind  any  man  guilty  of  an  offence 
which  would  subject  him  to  the  punishment  of  death.* 

§  574.  Expression  of  Opinion. —  We  have  ol)fc;erved  in  a 
former  section  ^  that  there  are  decisions  of  high  authority 
in  this  countr}^  which  concede  the  right  of  an  accused  per- 
son to  challenge  for  favor  one  of  the  grand  jury,  because  of 
the  formation  and  expression  of  an  opinion  upon  the  sub- 
ject matter  of  the  charge.*'     But,  in  view  of  the  recognized 

1  Baldwin's  Case,  2  Tyler,  473.  In  some  States  there  are  statutes  pro- 
viding for  the  exclusion  of  the  juror  when  so  charged.  Code  Ala.  187G, 
§  4771 ;  Ark.  Dig.  Stat.  1874,  §  1771;  Stat.  Tenn.  1871,  §  5086;  R.  S.  Mo. 
1879,  §  1788. 

2  Koch  V.  State.  32  Ohio  St.  353,  356,  per  Wright,  J.  See  in  this  con- 
nection, ante,  §  181. 

» See  ante,  §  202. 

*  Jones  V.  State,  2  Blackf.  475. 

^Ante,  §  512. 

G  Trial  of  Aaron  Burr,  pp.  38,  44;  People  v.  Jewett,  3  Wend.  314,  323; 
State  V.  Rickey,  10  X.  J.  I..  83,  86;  United  States  v.  White,  5  Cranch 
C.  C.  457, 459.  See  also  State  v.  Hughes,  1  Ala.  655,  with  which  case  com- 
pare State  V.  Clarissa,  11  Ala.  57. 


§   574.]  OBJECTIONS  TO  THE  POLLS.  639 

right  of  a  grand  jury  to  find  an  indictment  upon  their  own 
knowledge,  it  is  difficult  to  see  how  this  right  of  challenge 
can  be  maintained.^  As  observed  by  the  Illinois  court  on 
one  occasion,  "  When  it  is  remembered  that,  under  our 
practice,  an  indictment  may  be  preferred  on  the  information 
-of  any  two  members  of  the  grand  jury,  without  being  sworn 
iis  witnesses,  or  on  the  oath  of  one  only,  we  cannot  see  how 
they  could  be  challenged  for  having  formed  and  expressed 
iin  oi3inion  of  the  prisoner's  guilt."  ^ 

1  State  V.  Millain,  3  Nev.  409.     See  upon  this  point,  1  Bisli.  Cr.  Proc. 
<3cled.),§881. 

2  Musick  V.  People,  40  111.  268,  per  Wallver,  J. 


fi40  IMPANELLING  THE  GRAND  JURY.  [CH.  XXVII. 


CHAPTER  XXVII. 


OF    IMPANELLING    THE    GRAND    JURY. 

SECTION. 
.577.     At  Coinmoii  Law  an  ex  parte  Proceeding. 

578.  The  Process  of  Impanelling. 

579.  Statutory  Provision  as  to  Time,  Diiectory  only. 

580.  Excusing  Jurors. 

(1.)  Statutory  Grounds  not  Exclusive. 

(2.)  A  Contrary  View. 

(3.)  Presumption  as  to  Validity  of  Excuse. 

581.  Substitute  of  Juror  excused  or  incompetent. 

582.  Tardy  -Juror  may  be  sent  to  Grand  Jury  Room. 

583.  Number  of  Grand  Jurors. 

(] .)  At  Common  Law. 

(2.)  As  fixed  by  Statutes  of  the  Several  States. 

(5.)  Number  in  Territorial  Courts. 

584.  Statutory  Number  Directory  only. 

585.  What  if  more  than  twenty-three  impanelled. 

586.  Presumption  of  Regularity  in  Organization. 

§  577.   At  Common  Law  an  Ex  Parte  Proceeding. —  It 

is  an  interestinir  study  to  examine  the  growth  of  the  right 
of  one  held  in  custody,  or  bound  to  answer  a  criminal 
charge,  to  appear  and  take  part  in  the  impanelling  of  the 
grand  jury  which  is  to  consider  the  charge  pending  against 
him.  The"*  elementary  works  upon  the  common  law  are, 
in  general,  clear  to  the  effect  that  no  such  right  ex- 
isted. The  grand  jury  was  distinctively  a  commission  rather 
than  a  tribunal,  oi-ganizcd  by  the  government  for  the  pur- 
pose of  secret  investigation  into  the  grounds  for  formally 
accusing  persons  of  crime.  If  unlawfully  organized,  as  by 
the  sheriff  placing  thereon  certain  persons  at  the  nomination 
of  private  persons,  or  if  it  embraced  those  who  were  not 


§   578.]  THE  PROCESS  OF  IMPANELLING.  641 

prohi  et  legales  homhies,  as  persons  attainted  of  treason  or 
felony,  villeins,  aliens,  and  the  like,  those  accused  by  such 
a  grand  jury  were  amply  protected  by  an  early  statute, 
which  provided  that  in  such  a  case  the  indictment  should  be 
"revoked,  annulled,  void  and  holden  for  none  forever."^ 
But  such  objections  were  not  made  during  the  impanelling 
of  the  body.  The  practice  was  to  present  them  in  the  form 
of  a  plea  in  abatement  of  the  indictment  upon  the  arraign- 
ment of  the  accused.^ 

§  578.  The  Process  of  Impanelling. —  Unless  this  i>: 
clearly  defined  by  statute,  there  would  seem  to  be  no  doubt, 
upon  principle,  that  it  is  relegated  to  the  discretion  of  the 
court,^  And  the  statutes  seldom  provide  anything  in  this 
respect.  It  is  rarely  stated  in  what  manner  the  grand  jury 
shall  be  made  up  from  the  panel  which  is  brought  into 
court.  The  New  York  Code  of  Criminal  Procedure*  provides 
that,  "  when  more  than  twenty-three  persons,  summoned 
as  grand  jurors,  attend  for  service,  the  clerk  must  prepare 
separate  ballots  containing  their  names,  folded  as  nearly 
alike  as  possible,  and  so  that  the  names  cannot  be  seen,  and 
must  deposit  them  in  a  box.  He  must  then  openly  draw 
out  of  the  box  twenty-three  ballots,  and  the  persons  whose 
names  are  drawn  constitute  the  grand  jury."  '"  Before  the 
enactment  of  this  provision  it  was  held  that  the  court  might 
select  from  the  panel  a  sufficient  number  and  discharge  the 
rest,  and  in  its  own  way  determine  in  what  mode  the 
selection  should  be  made,  and  for  what  reasons  any  of  the 
panel  might  be  discharged  or  excused,'''  The  practice  is  the 
same  in  ^Mississippi.  The  grand  jurors  need  not  be  drawn 
by  lot  from  the  whole  number  of  persons  summoned  by  the 
sheriff  and  in  attendance  as  such.  The  matter  is  left  to  the 
sound  discretion  of  the  court.     A  proper  exercise  of  that 

1  11  Hen.  IV.,  c.  9.     See  2  Hawk.  P.  C.  c,  25,  §§  16,  23;  ante,  §  528. 

2  Ante,  §§  528,  545. 

3  Ante,  §  268. 

*  Laws  N.  Y.  1881,  ch.  442. 
5  Sec.  236. 

«  Dolan  V.  People,  64  N.  Y.  485,  493. 

(41) 


«642  IMPANELIjyO  THE  ORAM)  .Tl'RY.  [CH.  XXVIl. 

tliscretion  is  to  cause  the  jurors  to  be  sworn  and  impanelled 
in  the  order  in  which  their  names  appear  upon  the  panel 
rrturncd  by  the  sheriff,  until  a  jury  is  procured.^ 

§  570.  Statiitor.A  Provision  as  to  Time,  Directory 
only. —  A  statute  making  it  the  duty  of  the  court  to 
impanel  the  grand  jury  upon  the  first  day  of  the  term  is  di- 
rectory only.  The  object  of  the  statute  is  to  have  the 
'body  impanelled  as  soon  as  possible,  so  as  to  i)romote  the 
speedv  administration  of  justice.  A  jury  imj)anclled  later 
is  nevertheless  qualified  to  act.'^ 

§  580.  Excusing  Jurors.^ — There  would  seem  to  l)e  no 
rule  to  interfere  with  the  discretion  of  the  court  to  excuse 
or  discharge  a  member  of  a  grand  jury  foi-  reasons  deemed 
t^ufficient.^  The  danger  to  be  apprehended  from  vesting 
the  court  with  this  discretionary  power  is  very  remote, 
:and  ordinarily  the  exercise  of  it  will  not  be  reviewed.'^ 

*(1.)   Stahitory  Grounds  not  Exclusive. — The  court  is  not 
•^deprived  of  its  dis(;retion  in  this  resj)cct,  because  the  legis- 
lature has  seen  fit  to  designate  one  or  more  causes  author- 
izing the  discharge  of  a  grand  juror.     Thus,  the  statutes  of 
Arkansas  provide  one  specific  cause  of  discharge,  namel}^ : 
that  it  is  apparent  that  there  are  grounds  for  proceeding 
against  him  b}^  indictment.  This  provision  was  held  not  im- 
])lied1j  to  prohibit  the  court  from   excusing  or  discharging 
•grand  jurors  for  other  causes  which  necessarily  would  affect 
the  juror's  peace  of  mind,  for  example,  sickness  or  death  in 
bis  family,  the  funeral  of   a  near  relation,  the  impending 
•destruction  of  his   buildings,  crops,  or  other  property,  b}-^ 
fire  or  flood,  and  in  general,  priA^ate  business  of  a  pressing 
n'\ture.     It  is   plainly  against  the  dictates  of  public  policy 
tliat  the  court  should  be  obliged  to  depend  upon  a  disabled 
"or  distracted  grand  jury  for  the  performance  of  its  impor- 
Aiint  duties,** 

•  Box  v.State,  34  Mifes.  614. 

2  State  V.  Davis,] 4  La.  An.  678. 

3  See  ante,  §  2o9. 

■•Denning  v.  State,  22  Ark.  l.'H  ;  Slate  v.  Braaford,  57 N.  H.  188. 
'•  State  V.  Bradford,  supra. 

*  Denning  v.  State,  supra.     See  in  this  connection  §  259,  subsec.   2, 


§    /)81.]  SUBSTITUTE  FOR  GRAND  JURORS.  64^ 

(2.)  ^1  Contrary  View. — All  courts  do  not  subscribe  to 
the  foregoing.  Thus,  it  is  held  by  the  Mississippi  court 
that,  after  a  grand  jury  has  been  impannelled  and  sworn, 
the  court  has  no  authority  to  discharge  a  member  of  the 
'body  for  a  cause  not  specified  by  statute  ;  nevertheless,  that 
this  irregular  action  will  not  vitiate  the  findin2r  of  the  re- 
mainder  of  the  body,  where  no  substitute  is  sworn  in  the 
place  of  the  grand  juror  excused,  and  a  sufficient  number  to 
'Constitute  a  legal  grand  jury  remain.^ 

(3.)  l^resumj)tion  as  to  Validity  of  Excuse. — In  the  ab- 
sence of  any  showing  to  the  contrary,  it  will  be  presumed 
that  jurors,  excused  by  the  court,  furnished  sufficient  rea- 
.sons  to  justify  this  course.'^  Such  reasons  need  not  be 
stated  b}'  the  jurors  under  oath  in  open  court. ^ 

§  581.  Substitute  for  Juror  Excused  or  Iiicouipetent. — 
-After  the  grand  jury  have  been  impannelled  and  sworn,  if 
it  becomes  necessar}^  to  excuse  one  of  the  number,  or  if  one 
be  discovered  to  be  incompetent,  there  would  seem  to  be 
no  rational  objection  to  the  action  of  the  court  in  filling  the 
vacancy  caused  by  this  withdrawal.^  To  hold  otherwise 
would  be  to  place  the  court  in  an  unfortunate  dilemma. 
'JMie  jury,  as  originally  constituted,  with  one  of  its  body  in- 
<'ompetent,  could  not  regularly  act,  and  the  withdrawal 
might  reduce  the  number  below  that  fixed  by  law.  To 
deny  to  the  court  power  to  fill  this  vacancy  would  operate 
to  deprive  it  of  a  grand  jury  for  the  term.  However, 
the  Mississippi  court  hold  that  if  a  grand  juror,  after  being 
impanelled  and  sworn,  is  excused  for  any  other  cause  than 
those  specified  by  statute,  a  substitute  for  such  juror  cannot 
be  lawfully  impanelled ;  that,  if  impanelled,  the  consti- 
tution of  the  body  is  tainted  by  the  presence  of  an  intruder, 
4ind  all  findings  by  the  grand  jury  in  such  a  case  will  be 
held  void.*" 

'  Portis  V.  State,  23  Miss.  578. 
-  People  V.  Millsaps,  35  Cal.  47. 
a  People  V.  likkleu,  32  Cal.  445. 

^  Jetton  V.  State,  Meigs,  192;  Com.  v.  Burton,  4  Leigk,  645;  State  v. 
Fowler,  .52  Iowa,  103. 
»  Portis  V.  State,  23  Miss.  578. 


H44  IMPANELLING  THK  CIJAXD  .71  KV.  [CU.   XXVIK 

§    582.    Tardy  Juimu-  iiiav  Ix'  s<'nt  to  (iraiul   -liiry  Rooui. 

—  It  is  Ji  matter  within  the  discretion  of  the  court,  whether 
a  juror  subsequently  :i[)pc;irini>-  shall  he  added  to  the  grand 
jury  after  it  has  been  fully  formed  and  has  retired  for  the 
performance  of  its  duties.' 

§  583.  XiiiulxT  of  (iraiid  Jurors. —  (  I  )  Af  Oommon 
Law. —  Although  ariciently,  as  we  have  seen,  the  accusing' 
body  consisted  of  twelve  oidy,'  in  later  times  the  grand 
jury  was  more  numerous.  Thus,  it  is  stated  by  Lord  Hale, 
that  "  if  there  l)e  thirteen  or  more  of  the  grand  inquest,  a 
presentment'  by  less  than  twelve  ought  not  to  be."  ^  The 
limit  of  twenty-three  is  never  exceeded,  for  the  plain  reason 
that  otherwise  twelve  of  the  body  might  not  be  suthcient  to 
find  an  indictment.*  This  matter  received  the  attention  of 
the  court  of  King's  Bench  in  1837,  where  Lord  Denman  so 
declared  the  law,  although  no  previously  adjudicated  cases 
could  be  found  in  relation  to  it.^ 

(2.)  As  fixed  hy  Statutes  of  the  several  States, —  It  is 
certainly  competent  for  the  legislature,  within  the  limits 
l)rescribed  by  the  common  law%  to  fix  the  number  which 
shall  constitute  a  grand  jury,  without  infringing  the  consti- 
tutional rights  of  the  accused."  This  number  has  been 
variously  determined  as  twelve,^  fifteen,^  sixteen,"  eighteen.^" 

1  Findley  v.  People,  1  Mich.  284;  Wadlin's  Case.  11  Mass.  142. 

2  Ante,  §  464. 

3  2  Hale  P.  C.  IGl :  Clyncaitrs  case,  Cro.  Eliz.  654;  State  v.  Symonds. 
36  Me.  128. 

*4  Bl.  Com.  302;  1  Chitty  Cr.  L.  306,  311.  See  State  v.  Symonds. 
36  Me.  128;  Crimm  v.  Com.,  119  Mass.  326.  See  "also  People  v.  Green. 
1  Utah  11 ;  R.  S.  W.  Va.  1879,  eh.  53,  §  4;  R.  C.  Md.  1878,  p.  561,  §  5. 

5  Rex  V.  Marsh,  6  Ad.  &  El.  237.  At  the  same  time  it  was  resolved 
that  if  more  than  twenty-three  were  sworn,  and  found  a  bill,  the  court 
would  not  on  that  account  quash  the  indictment  after  the  defendant  had 
removed  It  by  cprtiorari,  had  j^one  to  trial  and  been  convicted.  See  also 
Conkey  v.  People,  1  Abb.  App.  Dec.  418.  Contra,  People  v.  King;.  2 
Caines,  98;  People  v.  Thurston,  5  Cal.  60. 

6  Brucker  v.  State,  16  Wis.  333. 

'  Gen.  Laws  Colo.  1877,  §  1477;  R.  S.  Mo.  1879,  §  2783;  Texas  Code 
Cr.  Proc.  1879,  Art.  383. 

«  Comp.  L.  Kan.  1879,  §  4.566;  Laws  Utah,  1878,  §  117;  Code  Ala.  1876. 
§  4753 ;  Miller's  R.  C.  Iowa,  1880,  §  4256. 

9  Ark.  Dig.  Stat.  1874,  §  3681. 

'»  G.  S.  Conn.  1875,  p.  536,  §  3. 


§  083.]  NUMBER  OF  GRAND  -JURORS.  645 

111  othei"  States  the  iiiunbcr  has  been  fixed  l)et\veen  oei'tain 
limits.  Thus,  thirteen  and  fifteen,^  tifteen  and  seventeen, ' 
Hfteen  and  twenty,'^  sixteen  and  twenty-three,''  seventeen 
and  twenty -three,*  eighteen  and  twenty-three.''  In  some 
States  the  number  is  fixed  at  less  than  twelve  ;  thus,  in 
Indiana  it  was  enacted  in  1875,  that  "  a  grand  jury  shall  be 
composed  of  six  reputable  freeholders  and  residents  of  the 
■county."'  If  constitutional  authority  were  necessarj^  to 
make  this  reduction  below  the  number  so  highlv  esteemed 
•iit  common  law,  it  would  clearly  be  found  in  the  provision 
of  the  organic  law  of  that  State,  enacting  that  "  the  general 
iissembly  may  modify  or  abolish  the  grand  jury  system.'"* 
However,  in  certain  other  States,  the  legislature  has  seen  fit 
to  reduce  the  number  below  twelve,  in  the  absence  of  a 
.similar  constitutional  provision  Thus,  by  the  laws  of 
Oregon,  the  number  is  fixed  at  seven.''  In  Virginia  the  grand 
jur}'  for  a  special  term  may  consist  of  six  or  more."'"  By 
the  Texas  Code  of  Criminal  Procedure,  nine  constitute  a 
quorum  for  the  purpose  of  discharging  any  duty  or  exer- 
cising any  right  properly  belonging  to  the  grand  jury.'' 

(3.)  Number  in  Territorial  Courts. — Section  8U-S  of  the 
Eevised  Statutes  of  the  United  States  provides  that  "  every' 
grand  jury  impanelled  before  any  District  or  Circuit  Court 
.shall  consist  of  not  less  than  sixteen,  nor  more  than  twenty- 
three  persons."     This  applies  only  to  Circuit  and  District 

1  Cal.  Code  Civ.  Proc,  §  192. 

2K.  S.  Wis.  1878,  §  2545. 

=*  K.  C.  Miss.  1880,  §  1G67. 

^Rev.  Stat.  U.  S  ,  §  808;  R.  S.  III.  1880,  p.  651,  §  16;  Id.,  p.  412,  § 
407;  2  Stat,  at  L.  Miun.  1873,  p.  1033,  §  76;  Id.,  p.  1034,  §  87;  Code  Va. 
1873,  p.  1236,  §  5;  X.  Y.  Code  Crim.  Proc.  1881,  §  224. 

*  Couip.  L.  Ariz.  1877,  §  2307. 

«  Code  Gu.  1873,  §  3014. 

'2  Stat.  Ind.  1S7G,  p.  417,  §  1,  note.  Juries  of  twelve,  selc(;ti:.d  before 
the  change  in  tiie  law,  were  permitted  to  tind  indictments  after  the  new 
law  took  effect.  See  State  v.  May,  50  Ind.  170;  St^ate  v.  Myers,  51  Ind. 
145;  Veatch  v.  State,  56  Ind.  584;  Meiers  v.  State,  56  Ind.  336. 

»  Const.  Ind.  1851,  Art.  7,  §  16. 

'•>  Gen.  Laws  Oreg.  1872,  p.  344,  §  31. 

J"  Code  Va.  1873,  p.  1236,  §  5. 

1'  Art.  383. 


646 


IMPANELLINC;  TI[K  CiUAND    1 1  UY .  [CH.   XXVII 


Courts  of  the  United  States.  An  iiuliclnieiit  for  an  off e nee- 
against  the  Federal  statutes  may,  tlicrcfore,  he  found  in  a 
District  Court  of  Utah  l)y  a  grand  jury  of  lifteen  ])crsoMs^ 
impanelled  [)ursuant  to  the  hiws  of  that  Territory.' 

§  584.  The  XuinI)or  tixcd  Directory  only. —  Jnum  early 
Iowa  case,'^  the  numher  of  the  grand  jury  heing  tixed  by  the 
statute  at  fifteen,  it  Avas  held  that,  although  twelve  con- 
curred in  finding  the  indictment,  a  grand  jury  of  tiie  statu- 
tory numher  ought  to  have  deliberated  upon  the  charge  r 
consequently  the  finding  was  held  void.''  This  decision  did 
not  find  favor  later  in  the  same  court.  It  is  now  regarded 
as  the  law  of  that  State  that,  although  the  panel  may  l)e 
reduced  by  challenges  below  the  statutory  number  required 
for  a  grand  jury,  a  finding  by  twelve  will  be  good,  for  the 
reason  that  jurors  so  challenged  do  not  cease  to  be  members^ 
of  the  body.^  They  are  simply  required  not  to  be  "  present 
at  or  take  any  part  in  the  consideration  of  the  charge 
against  the  defendant."''  Other  courts,  also,  hold  that  it 
is  not  necessary  that  the  entire  statutory  immber  of  jurors 
should  delil)erate  ui)on  every  case."  Similarly,  it  has  been 
.held  that,  although  the  statute  fixes  the  number  of  the 
grand  jury  at  sixteen,  a  larger  number,  the  whole  panel  of 

1  Reynnlds  v.  United  States,  98  IT.  S.  145;  .s.  c,  1  Utah,  220,  310. 

2  Xoriis'  House  v.  State,  3  G.  Groeue,  513. 

3  See,  also.  Doyle  v.  State,  17  Ohio.  222;  Strauglian  v.  State,  IG  Ark.  37, 
43 ;  State  v.  ITawkins,  10  Ark.  71 ;  Gladden  v.  State,  12  Fla.  5(52 ;  Fitzp^erald 
V.  State,  4  Wis.  395. 

<Statev.  Ostrander,  IS  Iowa,  435;  United  States  v.  Williams,  1  Dill. 
485,  495;  State  v.  Garhart,  35  Iowa,  317. 

5  Iowa  Rev.,  1800.  §  4017. 

6  People  V.  Roberts.  0  Gal.  214;  People  v.  Butler,  8  Cal.  435;  State  v. 
Miller,  3  Ala.  343;  Hudson  v.  State,  1  Blackf.  317;  Pybos  v.  State,  3 
Humph.  49;  State  v.  Davis.  2  Irod.  1..  153;  Com.  v.  Wood,2  Cush.  1 19; 
State  V.  Jacobs,  6  Tex.  99;  People  v.  Hunter,  54  Cal.  65;  s.  c,  9  Repor- 
ter, 508;  People  v.  Gatewood,  20  Cal.  140;  State  v.  Swift,  14  La.  An.  827. 
But  the  limit  tixed  by  the  New  York  Code  of  Criminal  Procedure  of 
1881  would  seem  to  be  imperative.  A  section  of  this  code,  after  provi- 
ding that  the  number  of  the  o^rand  jurors  shall  be  "  not  less  thai> 
sixteen  and  not  more  than  twenty-three  persons,"  concludes,  "and  thfr 
presence  of  at  least  sixteen  is  necessary  for  the  transaction  of  any  busi- 
ness."   Section  224. 


§  586.]    PRESUMITION  OF  REGULARITY  IN  ORGANIZATION.      <)4T 

twenty-three,  may  act  as  a  grand  jury  ;'  but  the  opinion  of 
other  courts  is  to  the  contrary.'^ 

§  585.  What  if  more  th Jill  Twenty-three  Iinpaiielled.' — 
If  tvventj-four  persons  are  in  attendance  to  act  as  grand 
jurors,  the  court  may  strike  off  the  name  of  the  man  who 
is  last  upon  the  list,  or  direct  the  body  itself  to  do  so  before 
being  organized  and  sworn.*  So,  where  the  court  ])er- 
mitted  two  more  persons  to  be  sworn  on  the  grand  jury  than 
allowed  by  law,  but  afterwards,  before  any  action  was  taken 
l)y  the  grand  jury,  discharged  the  two  hist  sworn,  this- 
action  left  the  body  ({ualitied  to  act.^ 

§  586.  Presumption  of  Regularity  in  Organization. — 
In  the  absence  of  any  showing  to  the  contrary,  it  will  he- 
presumed  that  the  officers  charged  with  the  duty  of  selecting- 
jurors  have  followed  the  directions  of  the  statute  ;  there- 
fore, upon  a  challenge  to  the  panel,  the  burden  is  upon  the 
challenging  party  to  maintain  the  truth  of  his  allegations.* 
Likew'ise,  upon  the  presentation  of  an  indictment  in  due 
form,  the  court  will  presume,  in  the  absence  of  specific 
objection  and  afiirmat'ive  proof  to  the  contrary,  that  the 
grand  jury  was  proj)erly  organized.^ 

1  Beasley  v.  People,  80  111,  571. 

2  Miller  v.  State,  33  Miss.  35(5;  Harding  v.  State,  22  Ark.  210;  Keeoh  v- 
State,  15  Fla.  591 ;  United  States  v.  Reynolds,  1  Utali  226. 

^  See  ante,  §  11. 

*  Ridling  v.  State,  56  Ga.  601. 

^  State  V.  Fee,  19  Wis.  563.  See  also  ante,  §  11.  If  grand  jurors,  after- 
being  sworn,  ar«  at  once  excused,  and  do  not  rejoin  the  grand  jury  iit 
their  deliberations,  they  form  no  part  of  such  body  thereafter.  Crimni  v.. 
Com.,  119  Mass.  326. 

^  State  V.  Howard,  10  Iowa,  101 ;  Dutell  v.  State,  4  G.  Greene,  125;  State- 
V.  Clougli,  49  Me.  573;  Cody  v.  State,  3  How.  (Miss.)  27;  Zachary  v. 
State,  7  Biixt.  1. 

^  State  V.  Tazwell,  30  La.  An.  SS4;  State  v.  Watson,  31  La.  An.  379; 
Thompson  v.  State,  9  Ga.  210;  People  v.  Kelly,  46  Cal.  355;  McClure  v.. 
State,  1  Yerg.  215;  Galvin  v.  State,  6  Cold.  283;  HoUoway  v.  State,  53- 
Ind.  554;  Bell  v.  State,  42  lud.  335;  Long  v.  State,  46  End.  582;  Easter- 
ling  V.  State,  35  Miss.  210;  Bailey  v.  State,  39  Ind.  438;  Lovell  v.  State^. 
45  Ind.  550;  Com.  v.  PuUan,  3  Bush,  47.  But  see  Parmer  v.  State,  41 
Ala.  416;  Be  Hackley,  21  How.  Pr.  103. 


648  SWEAKINO  THE  (JRAND  .TTTRV.  [cH.   XXVIII, 


CHAPTER  XXVII J 


OF  SWEARING  THE  (JHAXD  JURY. 
SECTION. 

589.  The  Practice  in  England. 

590.  And  in  tlie  several  States. 

591.  Sworn  in  Open  Court. 

592.  Grand  Jurors  may  Affirm. 

593.  Form  of  Oath. 

(1.)  In  England. 

(2.)  In  the  several  States. 

§  58!'.  The  Practice  in  England. —  When  the  court  is 
dul}'  opened,  the  grand  jur}'  are  caTlcd,  and,  having  taken 
their  places  in  the  box,  the  oath  is  administered  to  them  bv 
the  clerk,  the  marshal  or  crier,  to  the  foreman  first,  and 
afterwards  to  the  jurors  in  groups  of  three.' 

§  590.  And  in  the  several  States. —  After  all  objections 
to  the  panel  and  to  polls  have  been  heard,  and  a  body  of  the 
number  required  by  law  has  been  selected,  the  foreman  takes 
the  oath  as  such  officer,  and  tlicn,  as  under  the  English  piac- 
tice,  the  other  jurors  swear  or  affirm  to  observe  the  same 
oath.  This  is  the  general  practice,  which  is  slightly  varied 
in  Maine,  Massachusetts,  Michigan  and  Wisconsin.  In  these 
States  the  two  jurors  standing  first  upon  the  list  are  sworn, 
and  then  the  remainder  of  the  panel  swear  or  affirm  that 
they  will  observe  the  same  oath.'^  Where  the  statutes  re- 
rjuire  that  the  remainder  of  the  panel   shall  be  sworn    in 

1  1  Chitty  C.  L.  312,  ;^13. 

2  R.  S.  Me.  1871,  ch.  134,  §  2;  G.  S.  Mass.  1860,  ch.  171.  §  5;  Comp.  E. 
Mich.  1871,  §  7880:  R.  S.  Wis.  1878,  §  2547. 

f 


§  593.]  FORM  OF  OATH.  649 

groups  of  a  certain  nuni))or,  it  seems  not  essential  to  the 
validity  ol  the  swearing  that  precisel}'  this  order  should  bo 
pursued.^  The  statutes  generally  specify  that  the  oath  shall 
be  administered  b}'  the  clerk  of  the  court ;  but  it  seems  not 
material  that  the  duty  should  be  performed  by  this  officer 
solely.  Any  officer,  authorized  by  law  to  administer  oaths 
generally,  may,  under  tlie  direction  of  the  court,  lawfully 
administer  the  prescribed  oath  to  the  grand  jury.-'  A 
swearing  b}'  a  clerk  de  facto  will  be  sufficient." 

§  591.  SAvorn  in  Open  Court. —  The  grand  jury  is  uni- 
formly sworn  in  open  court;  but  the  swearing  will  be  suffi- 
cient, although  not  done  in  the  immediate  presence  of  the 
judge,  and  even  in  his  temporary  a})scnce  from  the  bench.^ 

§  592.  Grand  Jurors  may  Affirm. —  The  statutes  uni- 
formly provide,  in  respect  of  the  swearing  of  the  grand  jury, 
that  jurors  may  affirm  or  swear  to  fulfill  the  duties  re- 
quired of  them  bylaw  ;  nevertheless,  in  the  absence  of  such 
a  special  i)rovision,  Quakers,  and  others  scrupulous  of  tak- 
ing oaths,  may,  under  a  general  statutory  i)rovision  author- 
izing them  to  affirm,  do  so  when  called  as  grand  jurors.'' 

§  593.  Form  of  Oath. —  (1.)  In  England. — The  form 
of  oath  in  general  use  varies  little  from  that  administered 
to  the  grand  jury  in  the  proceedings  against  the  Earl  of 
Shaftesbury  in  1G81.  The  oath  on  that  occasion,  as  set  out 
in  the  State  Trials,  is  as  follows  :  "  You  shall  diligently  in- 
quire and  true  presentments  make  of  all  such  matters,  arti- 
cles and  things,  as  shall  be  given  you  in  charge,  as  of  all 
other  nuitters  and  things,  as  shall  come  to  your  own  knowl- 
edge, touching  this  present  service;  the  king's  counsel, 
y^our  fellows'  and  your  own,  you  shall  keep  secret;  you 
shall  i)resent  no  person  for  hatred  or  malice  ;  neither  shall 
you  leave  any  one  unpresented,  for  fear,  favor  or  affection, 
for  lucre  or  gain,  or   any    hoj)es  thereof;   but   in  all  things 

1  Brown  V.  State.  10  Ark.  007.  013. 

2  Allen  V.  People,  77  111.  484. 

3  Herd  V.  Com.,  4  Leigh,  674. 
"»  Jetton  V.  State,  Meigs,  192. 
*  Com.  V.  Smith.  '.)  Mass.  107. 


()50  SWKAIilXU  THK  UKANl)  .JUKV.  [CH,   XXVUI. 

you  ^luill  [)ri'stMil  the  Iriitli,  the  wliolc  truth,  mid  nothiiij^- 
but  the  truth,  to  lh(>  Ix'st  of  your  kno\vIed<re.  So  help  you 
God.'" 

(2.)  Ill  Ike  /Several  /States. —  The  .statutes  of  each  State 
particuhuly  specify  the  form  of  oath  for  grand  jurors.  Of 
course  no  material  variance  from  the  statutory  form  can  Ix^ 
permitted.-'  It  will  l)e  observed  that,  in  tlie  oath  used  in 
Shaftesbury's  case,  thir  jurors  were  sworn  not  only  to  make 
true  presentment  of  all  matters  and  things  given  in  charge, 
but  also  of  "  all  other  matters  and  things  as  shall  come  to 
N'our  knowledge  touching  this  present  service."  The  forms 
of  oath  as  prescribed  by  the  statutes  vary  considerably  at 
this  point,  showing  a  marked  difference  in  the  powers  and 
functions  of  the  grand  jury  in  the  several  States,  in  certain 
States  the  form  of  the  oath  is  as  broad  as  in  Shaftesbury's 
case.^  In  others  it  recjuires  the  grand  jury  to  inquire  and 
present  all  matters  and  things  given  them  in  charge.*  But 
frequently  they  are  reijuirtid  to  prtisent  all  public  offences  of 
which  they  iiave  '  or  can  ohtain.  legal  evidence®  or  infor- 
mation.' 

^  8  IIow  Ht.  Tr.  7")!'.  A  more  iuuiciit  lorin  is  reciced  in  a  note  tx>  this 
case  as  being- from  liie  ••  Booi<  of  Oaths:  "  Ye  shall  truly  inquire,  and 
true  presentment  make  of  all  such  thin<?s  as  you  are  charged  withal  on 
the  queene's  behalf,  the  queene's  councel,  your  owne,  and  yourfellowes, 
you  shall  well  and  truly  keepe;  and  in  all  other  things  the  truth  present: 
So  help  you  God.  and  by  the  contents  of  this  Ijook."     Id.,  ll'l,  note. 

2  Ashburn  v   State,  15  Ga.  246. 

3  Gen.  Laws  Colo.  1877,  §  1470;  Code  Ga.  187:5,  §  iVJl.l;  K.  S.  111.   ISSO. 
p.  651,  §  IS;  R.  C.  Miss.  1880,  §  166G;  Comp.  L.  Xeb.  1881,  p.  725,  §:«.-); 
R.  S.  Ohio  1880,  §  7191;  Gen.  Laws  Oreg.  1872,  p.  315,  §  37;  Code  Va 
1873,  p.  1237,  §  6;  R.  S.  W.  Va.  187;^  ch,  53,  §  5;  Gen.  Stat.  R.   I.    1872, 
p.  434,  §  36;  Code  xVla.  1876,  §4755;  Stat.  Tenn.  1871,  §  4021. 

*  R.  S.  Me.  1871,  ch.  13-4,  §  2;  G.  S.  Mass.  1860,  ch.  171,  §  5;  Con)|).  L. 
Mich.  1871,  §  78S0;  G.  S.  N.  H.  1867,  ch.  242,  §  5;  Texas  Code  Cr.  I'roc. 
1879.  Art.  384;  R.  S.  Wis.  1878,  §  2.547;  Battle's  Rev.  ^V.  C.  1873,  p.  636; 
New  York  Code  Crim.  Proc.  1881,  §  215;  G.  S.  Conn.  1875,  p.  548.  §  1 ; 
Rev.  L.  Vt.  1880,  §4551. 

5  2  Stat,  at  Large,  Minn.  1873,  p.  943;  Laws  Utah,  1878,  §  127. 

«Cal.  Penal  Code,  §  903;  Conip.  L.  Ariz.  1877,  §  584;  Miller's  R.  C. 
Iowa,  1880,  §  4268;  Comp.  L.  Kan.  1879,  §  4567;  R.  S.  Mo.  1879,  §  1774; 
Comp.  L.  Nev.  1873,  §  1816;  Gen.  Laws  New  Mexico,  1880,  p.  368,  §  11 ; 
2  Stat.  Ind.  1876,  p.  368. 

■  Ark.  Dig.  Stat.  1874,  §  17.50:   G.  S.  Ky.  1879,  i).  570.  §  6. 


§   595.  ]  RELATION  OF  COURT  AND  GRAND  JURY.  »)51 


CHAPTER  XXIX. 


OF  THE  RELATIONSHIP  OF  COURT  AND  GRAND  JURY. 

SECTION. 

595.  The  Grand  Jury  an  Inilepeiitleiit  Coiistitiieiit  of  the  Court. 

596.  But  in  certaiu  Respects  subject  to  the  Control  of  the  Court. 

597.  Afforcing  the  Grand  Jury. 
.598.  Session  in  Open  Court. 

599.  Charging  the  Grand  Jury. 

600.  Charged  only  in  General  Terms. 

601.  Omission  of  tiiis  Duty. 

§    595.    The   Grand  Jury  an   Independent  Con.stitutent 

of  the  Court. —  In  certain  I'cspects,  the  grand  jury  is  to  bo 
regarded  as  enjoying  a  distinct  autonomy.  After  they  have 
been  duly  organized,  the  hirger  pait  of  their  legitiinMt(" 
functions  is  to  be  performed  hy  them  as  a  separate  and  in- 
dependent body,  acting  by  themselves  apart  from  the  court ; 
and,  in  their  deliberations  and  action,  they  are  subject  to  no 
control  or  direction,  other  than  that  which  the}^  may  receive 
in  the  charge  of  the  court  before  they  proceed  to  enter  upon 
their  duties.^  The  court  neither  keeps  their  consciences,  nor 
can  control  them  in  finding  facts. ^  Within  the  sphere  of 
their  duties  their  power  may  be  properly  said  to  be  omni[)o- 
tent.'^  This  independence  is  shown  by  the  conceded  power 
of  the  grand  jury  to  find  an  indictment  when  the  court  is 
not  in  session,*  or  during  a  vacancy  in  the  oflicc  of  prose- 

1  Com.  V.  Barron,  97  Mass.  2U,  219;  Finley  v.  State,  61  Ala.  201,  204; 
Com.  V.  Eidgway,  2  Ashm.  247,  259;  Lewis  v.  Wake  County,  74  N.  C. 
194,  198;  State  v.  Burlingame,  15  Me.  104,  108. 

2  Turlv  V.  State,  7  Ohio  (Pt.  11),  240. 

3  People  V.  Naughton,  7  Abb.  Pr.  (N.  S.)  421,  426;  Com.  v.  Bannon. 
97  Mass.  214,  219;  Lewis  v.  Wake  Connty,  74  N.  C.  194.  198. 

*  Com.  V.  Bannon,  supra. 


<352  KELATION  OV  COUUT  AND  (JHAM) 'll'KY.    [CII.   XXiX. 

cuting  Jittoriicy  ;'  i)y  the  power  to  detain  :i  witness  in  enstody 
ilurinij:  the  absenee  of  tiie  judge,  that  he  may  be  taken 
before  the  eourt  and  ])unished  for  contempt  ;'-'  and  especially 
by  its  power  to  exclude  e\en  the  otHcers  of  the  govermnent 
from  the  jury  room,  when,  in  their  judgment,  their  pre.s- 
onee  would  be  i)rejudieial  to  that  free  deliberation  which  it 
is  the  aim  of  the  law  to  secure.^ 

§  viH).  But  ill  certain  Respoots  Subject  to  the  Control 
of  the  Court.— However,  it  is  a  matter  of  common  knowl- 
edge that,  in  other  respects,  they  are  subject  to  the  control 
of  the  eourt,  and  de[)endent  ui)on  it  for  the  exercise  of 
j)owers  necessary  to  the  prosecution  of  their  inquiries. 
Thus,  before  retiring  to  their  room,  they  arc  charged  in 
respect  of  tlieir  duties  by  the  presiding  judge,  and  by  such 
directions  the}'  are  l)ound  to  be  guided.'*  They  must 
invoke  the  powers  of  the  court  to  procure  the  attend- 
ance of  witnesses,  and  again,  when  such  are  guilty  of  con- 
tumacy, it  is  only  tlirough  the  order  of  the  eourt  that  thev 
iire  punishable  for  contempt.''  The  power  resides  iu  the 
court  to  in(|uire  whether  the  grand  jury  have  performed 
their  duty,  or  whether  they  have  exceeded  their  powers.*' 
The  court  ma}'  till  vacancies  in  the  panel,'  may  })unisii  the 
grand  jurors  as  a  body,'^  or  indi\idually,"  for  (;ontempt  and 
violation  of  duty.  Therefore,  it  is  customary  to  view  the 
grand  jury  as  an  "  appendage  "   or  branch  of  the  court,  of 

'  United  .States  v.  McAvoj,  4  Blatch.  418;  State  v.  Gojizales,  2G  Tex. 
li)7.  Any  other  competent  person  may,  by  the  direction  of  the  conrt, 
prcpiire  indictments,  and  a  succeeding  prosecutinj;  oflicer  nui}'  adopt  the 
same  hy  arraigning  and  trying  the  accused  thereon.  Ibid.  See  also 
Bennett  v.  State,  27  Tex.  701. 

^  Heard  v.  Pierce,  8  Ciish.  ':J88. 

•'  Post,  §  630. 

I  Post,  §  509. 

•'  Com.  V.  Bannon,  97  Mass.  214;  Heard  v.  Fierce,  8  Cush.  338. 

«  People  v.  Naughton,  7  Abb.  Pr.  (N.  S.)  421.  420:  Denning  v.  Stale. 
-22  Ark.  131,132. 

'  Denning  v.  State,  supra. 

"Turk  V.  State,  7  Ohio  (in.  II.).  240.  243;  State  v.  Cowan,  1  Head,  280. 

'■'  Re  Ellis.  Hemp.  10. 


§    51)7,]  AFFORCING  THP]  GRAND  JURY.  653 

which    the  jud<>c  of  the  eoiirt  is  the    head    or    eontroUiiiji,- 
power, ^ 

§  597.  Afforcing' the  fii'and  Jury. —  The  ancient  practice- 
of  forcing  petit  jurors  by  tine  and  imprisonment  to  find  ver- 
dicts against  their  convictions,  is  now  iustlvreo-arded  as  one 
of  the  barl^arities  of  the  common  hiw.  The  grand  jury 
were  also  subject  to  the  same  disci[)line,  and  evidently  to  a 
late  date.  In  1681,  upon  the  famous  proceedings  against 
the  Earl  of  Shaftesbury,  Lord  Chief  Justice  Pp:mberton 
strove  to  influence  the  grand  jury  with  this  threat:  "Let 
me  tell  you,"  said  he,  "  if  any  of  yon  shall  be  refractorv, 
and  will  not  tind  any  bill  where  there  is  a  probaI)le  ground 
for  an  accusation,  you  do  therein  undertake  to  intercei)t 
justice  :  and  you  thereby  make  yourselves  criminals  and 
guilty,  and  the  fault  will  lie  at  your  door."  '^     But  the  prac- 

1  United  States  V.  Hill,  1  Brock.  156;  Denning  V.  State,  22  Ark.  13k 
132;  Clienyv.  State,  6Fla,  679,  6S5;  People  v.  Naughton,  7  Abb.  Fv. 
(N.  S.)  421,  423;  Com.  v,  Bannon,  97  Mass.  214,  219;  Heard  v.  Pierce.  S 
(^usli.  338.  339;  Lewis  v.  Wake  County,  74  N,  C.  194,  198;  Com.  v. 
Crans,  3  Penn.  L,  J.  449,  450;  .s.  c,  2  Clark,  180,  Regarding  the  grand 
jury  as  a  co-ordinate  branch  of  tlie  court,  it  has  been  held  that  a  reflec- 
tion upon  them  and  their  conduct,  in  the  public  press,  is  punish- 
able as  a  constructive  contempt  of  court.  Ex  parte  Van  Hook,  3  N.  Y. 
(Jity  Hall  Eec,  64;  Ex  parte  Spooner,  5  Id.  109,  But  see  Storey  v. 
People.  79  111,45;  Grand  Jury  v.  Public  Press,  4  Brewst.  313.  Upon  this 
point  it  was  said  in  one  case:  "'The  grand  jury,  being  officers  of  the 
court  and  under  its  legal  direction,  are  entitled  to  its  protection  from 
assaults  of  every  kind,  whether  the  effort  is  designed  to  influence  them 
on  questions  of  law  or  fact,  or  intended  to  disturb  tliem  in  their  delib- 
<n-ations  when  assembled  in  court  or  the  jury-room,  or  to  menace  them 
by  threats  of  violence  for  the  manner  in  which  they  shall  perform  their 
duty,  or  to  control,  influence  or  bias  their  judgment  upon  any  <piestion 
likely  to  come  before  them  for  deliberation.  To  attempt  anything  of 
the  kind  is  criminal  in  the  eye  of  the  law.  It  is  a  high  contempt  of  the 
court,  an  obstruction  of  the  administration  of  justice,  and  tlie  tendency 
of  all  such  acts  is  to  corrupt  the  fountains  of  judicial  tribunals,  which, 
for  the  safety  of  society,  should  always  be  kept  pure,  and  even  free  from 
suspicion."  Com.  v.  Crans,  3  Penn.  L.  J.  453;  s.  c,  2  Clark  (Penn,). 
184. 

-  S  How.  St.  Tr.  759,  770.  This  threat  did  not  avail.  The  conduct  of 
the  grand  jury  upon  this  occasion  is  one  of  the  finest  illustrations  of  fear- 
less independence  recorded  in  history.  The  finding  was  " /f7Hora?»?<.s-.'" 
Upon  which  it  is  said,  "  there  was  a  most  wonderful  shout,  that  one 
would  have  thought  the  hall  had  cracked."     At  what  cost  these  jurors 


<)f)  I  KELATION  OK  COLRT  AND  GRAND  JURY.    [CII.   XXIX. 

lice  befoio  this  date  had  l)ecii  strongly  reprobated.  "  The 
j)rivileiro  of  an  Englishman,"  said  Lord  Hale,  "is  that  his 
life  shall  not  be  drawn  in  danger  without  due  presentment 
or  indictment:  and  this  would  be  but  a  slender  screen  or 
.siifeguard,  if  every  justice  of  the  })eace,  or  commissioner  of 
oyer  and  terminer,  or  goal  delivery,  may  make  the  grand 
jiuv  present  what  he  pleases,  or  otherwise  line  them."  ' 

§  598.  Session  in  Open  Court. —  Another  means  of  de- 
stroying the  original  independence  of  the  grand  jury  was  to 
compel  them  to  hear  the  testimony  of  the  witnesses  in  open 
court. '^  An  attempt  to  overawe  the  grand  jury  by  this 
means,  was  made  in  the  proceedings  against  the  Earl  of 
Shaftesbury,  which  we  have  just  noticed.  The  grand  jury 
l)rotested  without  avail,  and  all  the  testimony  was  given  in 
])ublic.  The  signal  failure  of  the  court  to  coerce  the  grand 
jury  in  this  case,  probably  rendered  this  practice  obnoxious, 
as  no  later  instance  of  it  in  England  is  found. ^  A  public  ses- 
sion of  the  grand  jury  has  been  i)ronounced  illegal  in  this 
country.^ 

§  599.  Charjfinj?  the  Grand  Jury. —  It  is  the  uniform 
j)ractice  for  the  judge,  after  the  bod}^  of  grand  jurors  has 
been  impanelled  and  sworn,  to  charge  them  in  general 
terms  as  to  the  nature  of  their  duties.  "In  the  perform- 
ance of  this  dut}^"  says  Mr.  Chittv,  "  the  judicious  magis- 
trate will  take  care,  not  only  that  his  remarks  are,  in  gen- 
eral, suited  to  the  offices  which  a  grand  jury  have  to 
discharge,  but  have  a  plain  reference  to  local  objects,  events, 
discussions  and  concerns,  as  far  as  they  properly  fall  within 
the  limits  of  his  jurisdiction,  and  seem  entitled  to  his  notice. 
He  will  strive  to  allay  animosities,  to  destroy  the  spirit  of 
party,  to  discountenance  every  receptacle  of   idleness  and 

<1iil  tlieir  duty  is  diiul}'  learned  from  the  remarks  of  Sir  Jolin  Hawles 
upon  this  case  :  "  Two  of  them,  if  not  more,"  said  he,  "'  were  afterwards 
upon  other  pretences  severely  handled.'"     8  How.  St.  Tr.  842,  note. 

'  2  Hale  P.  C.  IGl. 

•'  The  Poulterer's  Case,  9  Coke  Kep.  55.  b. 

•■'  4  Bl.  Com.  303,  note. 

*  State  V.  Branch,  68  N.  C.  180. 


§  600.]      CHARGED  ONLY  IN  GENERAL  TERMS.  655 

vice,  as  well  as  every  vestige  of  popular  barbarity  and 
grossness."  ' 

The  grand  jury  have  a  right,  at  all  reasonable  times  dur- 
ing the  discharge  of  their  duties,  to  apply  either  to  the 
<'ourt  or  to  the  prosecuting  attorney  for  advice.-  But  this 
advice  must  be  restricted  to  matters  of  law.  Neither  the 
court  nor  this  officer  can  say  to  the  jury  that  the  facts  as 
shown  b}^  the  evidence  are  sufficient  to  authorize  them  to 
find  a  bill.  As  upon  a  trial  by  a  petit  jury,  the  judge  can- 
not say  that  the}^  should  return  a  verdict  of  guilty,  so  here 
the  court  cannot  advise  them  upon  the  question  of  a  true 
bill  or  not  a  true  bill.^ 

§  600.  Charged  only  in  General  Terms.  —  One  under 
prosecution  has  no  right  to  demand  that  the  grand  jury  be 
particularly  charged  with  reference  to  his  case.  An  attempt 
of  this  kind  was  made  in  the  proceedings  against  Aaron  Burr."* 
<Jhief  Justice  Marshall  was  averse  to  granting  the  instruc- 
tion, asked.  Nevertheless,  he  took  the  matter  under  advise- 
ment, and  later  prepared  a  supplemental  charge  which  he  sub- 
mitted to  the  district  attorney,  who,  objecting  to  some  por- 
tion of  it,  the  charge  appears  not  to  have  been  delivered.'^ 
Upon  this  authority,  a  similar  application  was  made  in 
Massachusetts.'"'  Chief  Justice  Parker  denied  the  privilege 
requested.  "  According  to  my  recollection"  said  he,  "this 
is  the  first  attempt  of  the  kind  in  this  Commonwealth.  It  is 
to  be  presumed  that  only  proper  evidence  will  be  laid  before 
the  jury.  There  is  a  difficulty  in  determining  beforehand 
what  may,  or  may  not  be  proper  :  and  it  would  be  incon- 
venient, to  say  the  least,  to  instruct  them  upon  hypothetical 

^  1  Chitty  Cr.  L.  ;^12.  See  the  following  charges  of  eminent  judges: 
Field,  J.,  in  2  Sawy.  G78;  Lord  Chief  Justice  Eyre  in  24  How.  St.  Tr. 
201. 

2  Cherry  v.  State,  6  Fla.  670, 685 ;  Turk  v.  State,  7  Ohio  St.  (Pt.  11.)  242 ; 
Shattnck  v.  State,  11  Tnd.  473.  See  also  State  v.  McNinch,  12  So.  Car. 
^9,  95;  post,  §634. 

3  Shattuck  V.  State,  supra. 

*  1  Burr's  Trial,  172. 
'■  Id.,  177. 

*  Com.  V.  Knapp,  9  Pick.  495. 


65H        UELATION  OF  COURT  AND  (ilJANl)  JUKV.  [CH.  XXIX. 

cases.  The  law  reposes  conHdeiu-c  in  the  ofHcers  of  the 
government  in  relation  to  this  sul)jeet  If  anything  ini- 
proi)er  shall  be  given  in  evidence  before  the  grand  jury,  the 
error  may  be  corrected  su))se(]uently  upon  the  trial  l)efore 
the  petit  jury." 

§  ()()1 .  Omission  of  this  I>uty.  —  The  duty  of  charging 
the  grand  jury  is  generally  enjoined  by  statute  in  the  sevem! 
States,  and  frequently  that  particular  laws  or  portions  of 
codes  shall  be  read  to  them,  with  a  view  to  bringing  the  at- 
tention of  the  body  pointedly  to  offences  denounced  by  such 
provisions.  It  is  not  clear,  however,  that  a  failure  of  the 
court  to  charge  the  grand  jury  as  required  by  law,  will 
A  itiate  their  proceedings.  The  Supreme  Court  of  Indiana 
li:is  held  that  it  will  not.^  Xor  is  it  essential  that  all  of  the 
grand  jurors  should  hear  the  full  charge  as  delivered  by  the 
court,  flurors  who  were  not  present  to  hear  the  general 
charge,  have  been  very  briefly  instructed  as  to  their  duties 
and  sent  to  the  jury  room.^ 

'  Stewart  v.  State.  -24  Ind.  142. 

-  Wadlin's  Case,  11  Mass.  142:  State  v.  Froisetli,  IGMiiin.  :n:{:  Findley 
V.  People,  1  Midi.  2S5. 


CH.  XXX.]  POWERS  OF  THE  GRAND  JURY.  657 


CHAPTER  XXX. 


OF  THE  POWERS  OF  THE  GRAND  JURY. 
SECTION. 

604.  Powers  coextensive  with  tliose  of  tlie  Court. 

605.  Prosecution  by  Indictment  or  Presentment. 

606.  The  former  preferred. 

607.  Proceedings  Preliminary  to  Indictment. 

60S.     Examination  of  Accused  by  a  Committing  Magistrate. 

609.  Not  usually  had  in  England. 

610.  Nor  generally  guaranteed  by  Statute  in  the  United  States. 

(1.)  Never  by  Implication. 

(2.)  But  expressly  granted  in  certain  cases  in  New  Hamp- 
shire. 
(3.)  Prior  to  Informations  in  some  States. 
(4.)  Before  Trial  in  Others. 

611.  Indictments  otherwise  originate  how. 

612.  Matters  of  General  Notoriety  given  in  Charge  by  Court. 

613.  Charges  preferred  ex  officio  by  Prosecuting  Ofiicer. 

614.  Presentment  upon  Knowledge  by  the  Grand  Jury. 

(1.)  Grounds  of  this  Knowledge. 
(2.)  Private  Prosecutor  not  heard  in  certain  Courts. 
(3.)  Communications  with  the  Grand  Jury  a  Contempt  of 
Court. 

615.  General  Inquisitorial  Powers  of  the  Grand  Jury. 

(1.)  Expressions  of  Opinion  showing. 
(2.)  Positive  Authority  to  this  Effect. 
(3.)  Apparent  from  Form  of  Oath. 
(4.)  Inquisitorial  Duty  enjoined  by  Statute. 

616.  Denied  by  some  Courts. 

617.  Special  Inquisitorial  Powers. 

618.  Power  to  Compel  Production  of  Telegrams. 

(1.)  Telegrams  not  Privileged  Communications. 

(2.)  Eules  of  Company  and  Statutes  imposing  Secrecy  to 

the  Contrary  notwithstanding. 
(3.)  Production  ordered  only  upon  Particular  Description^ 
(42) 


658  POWERS  OF  THE  GRAND  JURY.  [CH.  XXX. 

§  604.  Powers  coextensive  with  those  of  the  Court. — The 

grand  jury  possesses  powers  and  duties  coextensive  with  the 
jurisdiction  of  the  court  of  which  it  is  an  integral  part. 
*•  Grand  juries,"  observed  Chief  Justice  Marshall,  "are 
accessories  to  the  criminal  jurisdiction  of  a  court,  and  the}' 
liave  power  to  act  and  are  bound  to  act,  so  far  as  they  can 
aid  that  jurisdiction.  Thus  far  the  power  is  implied,  and 
is  as  legitimate  as  if  expressly  given.  To  suppose  the  pow- 
ers of  a  grand  jury,  created  not  by  express  statute  but 
by  the  necessity  of  their  aiding  the  jurisdiction  of  a  court, 
to  transcend  that  jurisdiction,  would  be  to  consider  grand 
juries,  once  convened,  to  be  clothed  with  powers  not  con- 
ferred b}'  law,  but  originating  with  themselves.  This  has 
never  been  imagined."^  It  clearly  follows  that  when  the 
grand  jury  act  in  excess  of  their  powers,  as  limited  in  the 
foregoing,  their  proceedings  are  without  jurisdiction,  and 
furnish  no  ground  for  subsequent  prosecution,^ 

§  605.  Prosecution  by  Indictment  or  Presentment. — 
The  modes  of  ])rosecution  before  a  grand  jury  are : 
1.  By  indictment.  2.  By  presentment.  "  An  indictment," 
says  Serjeant  Hawkins,  "  is  an  accusation,  at  the  suit 
of  the  King,  by  the  oaths  of  twelve  men  of  the  same 
€ountv  wherein  the  offence  was  committed,  returned  to 
inquire  of  all  offences  in  general  in  the  county  determinable 
by  the  court  into  which  they  are  returned,  and  finding  a  bill 
hrousht  before  them  to  be  true."  ^  "  But,"  he  continues, 
"  when  such  accusation  is  found  by  a  grand  jury,  without 
tmv  bill  brought  before  them,  and   afterwards  reduced  to  a 

1  United  States  v.  Hill,  1  Brock.  156,  159.  In  the  Territory  of  Utah,  a 
grand  jury  summoned  from  the  body  of  the  judicial  district  in  which  the 
court  is  held,  has  the  right  to  inquire  into  the  violations  of  the  teirito- 
rial  criminal  laws  coextensive  with  the  district,  although  embracing 
several  counties.  People  v.  Green,  1  Utah,  11.  Under  a  provision  of  the 
lievised  Statutes  of  the  United  States,  "  the  grand  jury  impanelled  and 
sworn  in  any  district  court  may  take  cognizance  of  all  crimes  and  of- 
fences within  the  jurisdiction  of  the  circuit  court  for  said  district,  as 
well  as  of  said  district  court."     Rev.  Stat.  U.  S.,  §  813. 

2  United  States  v.  Hill,  supra;  Beal  v.  State,  15  Ind.  378. 

"  "An  indictment,"  said  Lord  Chief  Justice  Holt,  "  is  not  an  indict- 
ancnt  till  it  be  found.     It  is  only  a  writing  prepared  for  the  ease  of  the 


§    606.]       TROSECUTION  BY  INDICTMENT  PREFERRED.  659 

formed  indictment,  it  is  called  a  presentment."  ^  The  two 
methods  of  prosecution  are  .accurately  adapted  to  the  inquest 
of  offences  by  the  grand  jury.  The  first,  coming  from  the 
prosecuting  officer,  suggests  to  the  grand  jury  the  existence 
■of  grounds  for  finding  a  formal  accusation  against  a  sus- 
pected person  ;  the  second,  coming  from  the  grand  jury  as 
the  ultimate  authority,  apprizes  the  prosecuting  officer  of 
his  duty  to  prepare  a  formal  accusation.^  A  presentment  is 
founded  upon  the  knowledge  or  observation  of  the  grand 
jury.  Like  an  indictment,  it  must  be  the  act  of  the  whole 
jury,  not  less  than  twelve  concurring  in  it.  It  is,  in  fact, 
as  much  a  criminal  accusation  as  an  indictment,  except  that 
it  emanates  from  their  own  knowledge,  and  not  from  the 
public  accuser,  and  except  that  it  w^ants  technical  form.^ 
Strictly  speaking,  an  indictment  is  a  form  of  presentment,^ 
but  this  circumstance  need  occasion  no  confusion,  as  the 
limited  meaning  of  the  term  "  presentment,"  in  this  con- 
nection, is  generally  apparent. 

§  606.  The  former  preferred. —  Speaking  of  the  indict- 
ment, Mr.  Chitty  says:  "It  is  the  most  constitutional, 
regular  and  safe,  as  well  by  far  the  most  usual  mode  of  pro- 
ceeding upon  criminal  charges."  ^  Speaking  of  the  present- 
ment, Mr.  Justice  Field,  in  a  charge  to  the  grand  jury, 

jury,  and  for  expedition.  It  is  nothinoj  till  it  is  found,  for  the  jury 
make  it  an  indictment  by  finding  it.''  Rookwood's  Case,  13  How.  St. 
Tr.  139, 159. 

^  2  Hawk,  P.  C.  ch.  25,  §  1.  See  upon  this  point,  Forsyth,  Hist.  Trial  by 
Jury,  215;  4  Bl.  Com.  302;  1  Chitty  C.  L.  162;  Whart.  Cr.  PI.  &  Pr.  (8th 
ed.),  §  86;  Bish.  Cr.  Proc.  (3d  ed.),  §  131. 

'^  Be  Lloyd  and  Carpenter,  5  Penn.  L.  J.  55;  s.  c,  3  Clark,  (Penn.) 
188,  quoted  with  approval  in  Whart.  C.  L.  (3d  ed.)  219,  note;  Whart.  Cr. 
PI.  &  Pr.  (8th  ed.)  §  338,  note;  charge  of  Mr.  Justice  Field,  2  Sawyer, 
678. 

'^  Ibid.  See  also  1  Chitty  Cr.  L.  163 ;  Lewis  v.  Wake  County,  74  si.  C. 
194, 197. 

*  Lord  Coke  observes:  "Every  inditement  which  is  found  by  the 
jurors  is  presented  by  them  to  the  court;  for  the  record  saith,  jifraforf^s 
praesentant,  etc.,  vvhen  they  find  an  inditement.  And  therefore  every 
inditement  is  a  presentment,  but  every  presentment  is  not  an  indite- 
ment."   2  Co.  Inst.  739. 

» 1  Chitty  Cr.  L.  162. 


660  POWERS  OF  THE  GRAND  JURY.  [CH.  XXX. 

said:  "  This  form  of  accusation  has  fallen  in  disuse  since 
the  practice  has  prevailed  —  and  the  practice  now  obtains 
generally  —  for  the  prosecuting'  officer  to  attend  the  grand 
jury  and  advise  them  in  their  investigations.  The  govern- 
ment now  seldom  delivers  bills  of  indictment  to  the  grand 
jury  in  advance  of  their  action,  but  generally  awaits  their 
judgment  upon  the  matters  laid  before  them."  ^ 

Regularly,  a  l)ill  of  indictment,  when  formally  prepared 
by  the  prosecuting  officer,  in  accordance  with  a  present- 
ment, is  not  recommitted  to  the  grand  jury  for  final  appro- 
val, but  stands  an  indictment  for  all  purposes,  as  efficient  as 
any  duly  laid  before  and  approved  by  the  grand  jury.^ 
But  this  is  not  the  practice  in  Tennessee.  When  the  grand 
jury,  or  any  one  of  their  body,  is  cognizant  of  an  offence, 
the  practice  is  to  inform  the  attorney-general  thereof,  in  the 
first  instance,  who  prepares  a  bill  of  indictment  upon  the 
information.  This  document  is  delivered  to  the  grand  jury, 
and  is  returned  Iwthem,  instead  of  the  old  informal  present- 
ment. The  consequence  is,  that  the  only  difference  between 
a  presentment  thus  made  and  a  bill  of  indictment  is,  that 
the  presentment  is  signed  by  all  the  jurors,  and  the  bill  of 
indictment  only  by  the  foreman.^ 

1  2  Sawyer,  678. 

2 1  Chitty  Cr.  L.  163;  Burn's  .Justice,  "Presentment;"  Rookwood's 
Case,  13  How.  St.  Tr.  139,  159,  per  Lord  Chief  Justice  Holt;  Nunn  v. 
State,  1  Ga.  243.  In  his  discussion  of  the  duties  of  a  grand  jury,  Addi- 
son, J.,  says  of  the  presentment:  "  The  person  so  accused  cannot  be 
called  to  answer  to  this,  till  it  is  drawn  up  in  form,  which  it  is  the 
duty  of  the  officer  for  the  prosecution  to  do.  The  best  way  to  do  this,  is 
to  draw  up  a  formal  indictment,  and  present  it  to  the  same  jury  for  their 
sanction.  But  if  the  presentment  state  all  the  material  facts  and  circum- 
stances, I  see  no  reason  why  such  indictment,  coupled  with  this  present- 
ment of  the  jury  to  the  same  effect,  should  not,  without  any  subsequent 
examination  and  approbation  by  a  grand  jury,  be  suflicient;  and  I  be- 
lieve it  would  be  sutlicientto  call  on  the  party  toanswer  it."  Add.  Pa. 
Rep.,  Appendix.  38. 

3  State  V.  Darnal,  1  Humph.  290.  See  also  State  v.  Cain,  1  Hawks, 
352.  It  need  not  appear  upon  the  knowledge  of  what  particular  grand 
jurors  the  presentment  is  made.  This  was  not  necessary  under  the  com- 
mon law  rule,  authorizing  a  presentment  upon  the  knowledge  of  any 
member  of  the  grand  jury,  and  the  rule  is  not  changed  by  a  statute  author- 
izing such  presentment  upon  the  knowledge  of  two  of  the  body,    Pjid. 


§   608.]  EXAMINATION  BY  A  COIVUVIITTING  MAGISTRATE.  661 

§  6()7.  Pi'oceediiigs  preliminary  to  Indictuieiit. —  It  is 
provided  by  the  Sixth  Amendment  to  the  Constitution  of 
the  United  States,  among  other  things,  that  "in  all  crim- 
inal prosecutions  the  accused  shall  enjoy  the  right  *  *  * 
to  be  informed  of  the  nature  and  cause  of  the  accusation  ; 
to  be  confronted  with  the  witnesses  against  him  ;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor, 
and  to  have  the  assistance  of  counsel  for  his  defence." 
Although  the  settled  construction  of  this  provision  is  that  it 
was  not  designed  as  a  limit  upon  the  State  governments  in 
reference  to  their  own  citizens,  but  exclusively  as  a  re- 
striction upon  Federal  power, ^  it  is  believed  that  a  provision 
of  similar  import  will  be  found  in  the  constitution  of  each 
State.  Such  a  provision  does  not  prohibit  other  modes  of 
originating  criminal  charges  against  offenders,  than  that 
by  a  prosecution  before  a  committing  magistrate.'^ 

§  608.  ExaminatioD  of  Accused  by  a  Committing'  Mag- 
istrate.—  However,  various  reasons  may  be  urged  for 
this  course.  If  the  evidence  is  insufficient,  one  ought 
not  to  be  compelled  to  bear  the  odium  of  indictment, 
and  perhaps  restraint  of  liberty,  until  his  innocence  can  be 
shown.  The  public  ought  not  to  be  subjected  to  the  un- 
necessary expense  of  holding  the  accused  in  custody  until 
such  time.  When  it  is  remembered  that  the  proceedings  of 
the  grand  jury  are  generally  ex  ixirte  ;  that,  as  a  rule,  they 
hear  only  the  evidence  of  the  prosecution  ;  and  that  the  minds 
of  grand  jurors  are  untrained  in  the  process  of  sifting  evi- 
dence,— it  is  easy  to  see  that  an  innocent  man  may  readily 
fall  a  victim  to  the  vindictive  zeal  of  the  public  or  private 
prosecutor.  On  the  other  hand,  the  advantages  of  a  prelim- 
inary examination  are  obvious.  The  accused  has  an  oppor- 
tunity of  definitely  ascertaining  the  nature  of  the  charge 
against  him.  His  counsel  are  there  to  cross-examine  the 
witnesses.     He  may  produce  witnesses   in  his  defence.     A 

1  Barron  v.  Baltimore,  7  Pet.  243 ;  Fox  v.  State,  5  How.  410;  Withers  v, 
Buckley,  20  How.  84;  Twitchell  v.  Cora.,  7  Wall.  321. 

2McCullough  V.  Com.,  67  Pa.  St.  30,  33;  Kowand  v.  Com.,  82  Pa.  St. 
405,408;  State  v.  Wolcott,  21  Conn.  272,  279. 


662  POWERS  OF  THE  GRAND  JURY.  [cil.  XXX, 

prima  facie  case  for  the  prosecution  inay  ')e  entirel}''  over- 
thrown, or  evidence,  which,  to  the  minds  of  the  grand  jurors- 
might  seem  sufficient  to  put  the  accused  to  answer,  may  l)e 
rejected  by  a  committing  magistrate,  as  wholly  incompetent 
or  insufficient  to  sustain  a  criminal  charge.  But  it  may  be 
strongly  questioned  whether  such  considerations  as  these 
are  not  overcome  by  others.  Besides  the  advantages  which 
we  have  enumerated  as  accruing  to  the  accused  from  a  pre- 
liminary examination,  there  is  another  and  very  con- 
siderable advantage  which  is  the  necessary  result  of  this 
proceeding.  The  prosecution  is  obliged  to  disclose  its  evi- 
dence to  the  accused,  before  he  is  put  upon  trial  for  the 
charge.  There  is  no  doubt  that  the  generality  of  accused 
persons  are  justly  accused.  Persons  who  have  committed 
grave  oifences  do  not  hesitate  at  subornation  of  perjurj^,. 
and  serviceable  persons  are  seldom  found  wanting  to  coun- 
teract the  evidence  of  the  prosecution  by  false  swearing. 

The  grand  jury  is  not  necessarily  deterred  from  finding' 
an  indictment,  because  at  the  time  the  charge  is  pre- 
sented to  thoni,  it  is  undergoing  examination  before  a  mag- 
istrate. This  circumstance  has  only  a  persuasive  force  with 
the  body  to  postpone  action  upon  the  charge.  Cases  may 
be  readily  imagined  where  it  is  highly  important  to  proceed 
by  indictment  without  delay,  and  the  law  does  not  interfere 
with  the  exercise  of  discretion  by  the  grand  jury  m  such 
emergencies.^  The  grand  jury  may  inquire  into  any  offence 
committed  after  they  have  been  impanelled.-  And  in  such 
a  case,  it  is  desirable  that  the  caption  of  the  indictment 
sliould  state  that  it  was  found  at  a  court  begun  and  held  at,, 
etc.,  and  continued  by  adjournment  to  a  day  named,  being 
after  the  time  of  the  alleged  offence.^ 

§  609.  Xot  usually  had  in  England.  —  It  is  familiar 
knowledge  that  in  England  the  greater  part  of  criminal  pros- 

1  People  V.  Hyler,  2  Park.  C.  R.  560:  People  v.  Ilorton,  4  Id.  222; 
People  V.  Ileffernan,  5  Id.  393. 

2  2  Hale  P.  C.  156;  1  Cliitty  Cr.  L.  315;  People  v.  Beatty,  14  Cal.  566; 
(;oin.  V.  Gee,  0  Gush.  174;  Alleu  v.  State,  5  Wis.  329. 

'Gases  cited  supra.  See  also  Gom.  v.  Stone,  3  Gray,  453;  Gom.  v> 
Hamilton,  15  Gray,  480. 


§  610,]   EXAMINATION  BY  A  COMMITTING  MAGISTRATE.  ()()3 

ecutions  are  set  on  foot  by  private  prosecutors,  and  con- 
ducted to  the  end  hy  such  legal  assistance  as  they  see  fit  to 
employ,  with  only  slight  supervision  by  officers  of  the  gov- 
ernment.^ The  first  and  natural  recourse  of  aggrieved 
parties  is  the  grand  jury.  Therefore,  a  recent  English  writer 
observes:  "  With  certain  exceptions,  a  person  may  prefer 
a  bill  of  indictment  against  another  before  the  grand  jury,, 
without  any  previous  inquiry  into  the  truth  of  the  accusa- 
tion before  a  magistrate.  This  general  right  was,  at  one 
time,  an  universal  right,  and  was  often  the  engine  of 
tyranny  and  abuse."  ^  The  qualification  of  this  once  uni- 
versal right,  is  found  in  the  Vexatious  Indictments  Act  of 
1859.^ 

§  610.  Xor  generally  guaranteed  by  Statute  in  the 
United  States. — (1.)  Never  hy  Implication. — In  view  of 
the  fact  that  the  grand  jury  have,  from  time  immemorial, 
possessed  the  power  to  present  for  offences  other  than  those 
brought  to  their  attention  by  bills  formally  prepared,  it  is 
clear  that  so  important  a  right  of  the  people  will  not  be 
divested,  unless  by  the  positive  terms  of  a  statute  which 
will  admit  of  no  other  construction.  The  statutes  generally 
provide  for  the  examination  of  accused  persons  by  commit- 
ting magistrates,  and  direct,  with  considerable  detail,  how 
this  proceeding  shall  be  conducted.  Nevertheless,  the 
accused  cannot,  by  virtue  of  such  statutes,  show,  in  abate- 
ment of  an  indictment,  that  no  preliminary  examination  was 
had.  The  examination  enjoined  is  a  mere  expedient  to  pre- 
vent the  suspected  person  from  escaping,  or  for  preserving 
the  evidence,  or  keeping  the  witnesses  within  control.* 
Otherwise,  it  is  clear  that  no  case  could  be  brought  before 
a  grand  jury,  unless  the  defendant  were  under  arrest,  and 
this  he  might  elude  until  the  offence  should  be  condoned  by 
a  statute  of  limitation.  Furthermore,  the  determination  of 
the   magistrate  to  discharge  an  accused  person,  would  be 

1  1  Bish.  Cr.  Proc,  §  278. 

2  Harris  Crim.  Law  (Am.  ed.  by  Force),  288. 

3  22  and  23  Vict.  c.  17. 

<  1  Bish.  Cr.  Proc.  (3d  ed.)  §  239  a. 


684  POAVERS  OF  THE  GRAND  JURY.  [CH.   XXX. 

conclusive  against  the  public.  He  mijrlit  grossly  orr  or  act 
from  improper  motives,  and  there  would  be  no  remedy.' 

(2.)  But  expressly  granted  in  certain  cases  in  New 
Hampshire. —  A  statute  of  New  Hampshire  requires  that 
assaults  shall  be  first  inquired  into  upon  complaint  to  a 
magistrate  or  police  court,  before  they  can  be  the  subject  of 
indictment.  The  object  of  this  law  is  merely  that  cases  of 
trivial  importance  should  not  come  before  the  grand  jury, 
and  that  some  evidence  should  be  furnished  the  court,  that 
the  case  before  them  is  one  proper  for  a  trial  by  jury  in  the 
first  instance.^ 

(3.)  Prior  to  Informations  in  some  States. — Statutes 
of  Michigan  and  Kansas,  and  prol)al>ly  other  States,  provide 
for  a  preliminary  examination  (unit  .ss  waived)  by  a  justice 
of  the  peace,  or  other  examining  magistrate  or  officer,  of  all 
persons  accused  of  offences  whicii  may  be  prosecuted  by 
information,  excepting,  however,  in  the  case  of  fugitives 
from  justice,  who  may  be  proceeded  against  by  information 
without  such  examination.^  The  policy  of  the  Michigan 
statutes  has  been  thus  explained  by  Christiancy,  J.  :  "This 
examination  was,  I  think,  intended  as  the  principal  safe- 
guard against  groundless  or  vindictive  prosecutions,  which 
it  was  supposed  might  otherwise  occur,  where  the  interposi- 
tion of  the  grand  jury  was  dispensed  with.  The  legislature 
do  not  seem  to  have  been  willing  to  leave  the  question  of 
prosecution  to  the  judgment  or  discretion  of  the  prose- 
cuting officer  alone."  * 

1  French  v.  People.  3  Park.  C.  R.  112.  124.  See  also  State  v.  Oscar,  13 
La.  An.  297;  Harper  v.  State,  7  Ohio  St.  73;  State  v.  Bunger,  14Iia.  An. 
461 ;  State  v.  Webster,  39  N.  H.  96. 

2  State;  V.  Thompson,  20  X.  H.  2.50,  255;  State  v.  Hilton,  32  N.  H.  285; 
State  V.  Stevens,  36  X.  H.  59. 

«  Sess.  Laws  Kan.  1864.  ch.  14,  §  8;  Sess.  Laws  Mich.  1859,  p.  393,  §  8. 

*  Morrissey  v.  People.  11  Midi.  327,  343.  See  also  State  v.  Montgomery. 
7  Ohio  St.  107;  State  v.  Barnett,  3  Kan.  250:  Washburn  v.  People,  10 
Mich.  372;  Anuis  v.  People,  13  Mich.  511 ;  Lightfoot  v.  People,  16  Midi. 
507;  Hanna  v.  People,  19  Mich.  316;  People  v.  Jones,  24  Mich.  215: 
Hamilton  v.  People,  29  Mich.  173;  People  v.  Lynch,  29  Mich.  274; 
Turnery.  People,  33  Mich.  363;  Yaner  v.  People,  34  Mich.  286;  O'Hara 
V.  People,  41  Mich.  623.     In  the  last  edition  of  Wharton  on  Criminal 


§    612.]      MATTERS  OF  NOTORIETY  GIVEN  IN  CHARGE.  665 

§    611.     Indictments    otherwise    originate,    how. —  We 

have  shown  in  the  previous  sections  that  although  an  ac- 
cused person  cannot  generally  demand,  as  a  right,  that  there 
shall  be  an  examination  of  the  charge  before  his  case  is 
turned  over  to  the  grand  jury,  nevertheless,  this  is  the  most 
regular  and  satisfactory  method  of  proceeding,  when  practi- 
cable. Indictments,  however,  originate  with  the  grand  jur}^ 
in  a  variety  of  ways,  which  will  now  be  noticed:  1.  By  the 
court  giving  a  matter  of  general  notoriety  specially  in 
charge.  2.  By  the  exercise  of  powers,  ex  officio,  of  the  pros- 
ecuting officer.  3.  From  the  knowledge  of  the  grand  jury. 
4.  By  the  exercise  of  general  or  special  inquisitorial  povvers 
by  that  body.  The  procedure  here  indicated  is  not  recog- 
nized by  all  courts.  Few  if  any  courts  would  deny  what 
is  stated  in  propositions  1  and  2.  Courts  may  differ  as 
to  what  is  included  in  the  term  "  knowledge."  Finally, 
many  courts  deny  in  toto  the  inquisitorial  power  of  the 
grand  jury. 

§  612.  Matters  of  General  Notoriety  given  in  Charge 
by  Court. —  It  is  everj^where  conceded  to  be  within  the 
province,  if  not  the  particular  function  of  the  court,  to  di- 
rect the  attention  of  the  grand  jury  to  the  investigation  of 
such  violations  of  law  as  are  of  common  report  in  the  com- 
munity ;  to  enjoin  a  searching  scrutiny  of  the  causes,  and  a 
presentment  of  persons,  against  whom,  in  their  judgment, 
well  founded  complaints  exist. ^  IS^o  better  expression  of 
the  power  and  duty  of  the  court  in  this  connection  is  found 
than  in  an  opinion  delivered  by  King,  J.,  in  1845,  in  the 
Court  of  Quarter  Sessions  for  the  city  and  county  of  Phila- 
delphia.'^     Having  stated  the  general   rule,  that  an  indict- 

Pleading  and  Practice,  this  eminent  writer  falls  into  a  material  error  in 
supposing,  upon  the  authoritj-  of  O'Hara  v.  People,  supra,  that  in  Mich- 
igan a  preliminary  examination  must  precede  action  bj''  the  grand  jury. 
Eighth  ed.,  §  339,  note.  By  a  curious  coincidence,  nian_y  of  the  forego- 
ing cases  are  also  cited  by  another  distinguished  authority  upon  crim- 
inal law,  to  the  same  effect.     1  Bishop  on  Criminal  Proc.  (3d  ed.)  239  a. 

1  McCullough  V.  Com.,  67  Pa.  St.  30,  33;  Hartranft's  Appeal,  85  Pa. 
St.  433,  441;  Grand  Jury  v.  Pnblic  Press,  4Brewst.  313. 

^iZeLloyd  and  Carpenter,  5  Peun.  L.  J.  55:  s.c,  3  Clark  (Peun.),  188. 


666  POWERS  OF  THE  GRAND  JURY.  [CII.XXX. 

uiiMit  slioiild  he  founded  upon  :i  [)reliiniiKiry  examination  of 
the  accused,  ho  proceeds  to  note  exceptions  :  "  The  first  of 
these,"  said  he,  "  is  where  criminal  courts  of  their  own 
motion  call  the  attention  of  grand  juries  to  and  direct  the 
investigation  of  matters  of  general  pul)lic  import,  which, 
from  their  nature  and  operation  in  the  entire  community* 
justify  such  intervention.  The  action  of  the  courts  on  such 
occasions  rather  bears  on  things  than  persons,  the  object 
being  the  suppression  of  general  and  [)ublic  evils,  affecting  in 
their  influence  and  operation  communities  rather  than  indi- 
viduals, and,  therefore,  more  properly  the  subject  of  gen- 
eral than  special  complaint, —  such  as  great  riots  that  shake 
the  social  fabric,  carrying  terror  and  dismay  among  the 
(•itizcns  ;  general  publico  nuisances,  affecting  the  public  health 
and  comfort ;  multiplied  and  flagrant  vices,  tending  to  de- 
bauch and  corrupt  the  public  morals,  and  the  like.  In  such 
cases  the  courts  may  properly,  in  aid  of  inquiries  directed 
by  them,  summon,  swear,  and  send  before  the  grand  jury 
such  witnesses  as  they  may  deem  wecessary  to  a  full  investi- 
gation of  the  evils  intimated,  in  order  to  enable  the  grand 
jury  to  present  the  offence  and  the  offenders.  But  this 
course  is  never  adopted  in  case  of  ordinary  crimes,  charged 
against  individuals,  because  it  would  involve,  to  a  certain 
extent,  the  expression  of  opinion  by  anticipation  on  facts 
subsequently  to  come  before  the  courts  for  direct  judgment, 
and  because  such  cases  present  none  of  tliose  urgent  neces- 
sities which  authorize  a  departure  from  the  ordinary  course 
of  justice.  In  directing  any  of  these  investigations,  the 
court  act  under  their  official  responsibilities,  and  must  an- 
swer for  any  step  taken,  not  justified  by  the  proper  exercise 
of  a  sound  judicial  discretion."  ^ 

This  opinion  will  be  also  found  nearly  in  full  in  Wh;irt.  Cr.  L.  (3d  ed.). 
§458,  note;  Whart.  Cr.  PI.  &  Pr.  (8th  ed.),  §  338,  note.  It  has  been 
strongly  indorsed,  as  stating  the  initiation  of  criminal  proceedings  with 
great  fullness  and  accuracy.  See  Eovvand  v.  Cora.,  82  Pa.  St.  40.5,  407; 
charge  of  Field,  J.,  2  Sawyer,  6G7,  676;  Grand  Jury  v.  Public  Press,  4 
Brewst.  313. 

'  It  is  conceived  that  a  moral  responsibility  only  is  here  indicated. 


§    614.]  PRESENTMENTS  UPON  KNOWLEDGE.  (jt>7 

§  613.  Charge  preferred  ex  officio  by  Prosecuting- 
Officer. —  Another  exception  to  the  general  rule  is  the  con- 
ceded right  of  the  attorney-generiil,  or  other  prosecuting 
officer,  to  bring  to  the  attention  of  the  grand  jury  the  cir- 
cumstances of  a  particular  case  for  their  action.^  In  prac- 
tice, this  power  should  be  cautiously  exercised  —  generally 
under  the  direction  of  the  court  —  and  never  unless  the 
public  good  demands  it.  It  is  evident  that  this  emergency 
includes  a  limited  class  of  cases,  for  example,  such  as  where 
the  accused  has  fled  the  State,  and  an  indictment  found  may 
be  required  previous  to  demanding  him  from  a  neighboring- 
State,  or  where  a  less  prompt  mode  of  proceeding  might 
lead  to  the  escape  of  the  offender.  AVhen  the  public  officer 
exercises  this  power  without  some  pressing  and  adequate 
necessity  to  justify  the  course,  it  is  the  duty  of  the  court 
to  set  the  officer's  act  aside.  The  action  of  the  officer 
and  the  court  can  be  made  the  subject  of  review  by  an  a[)- 
pellate  court  only  when  the  abuse  of  their  powers  is  both 
manifest  and  flagrant.^ 

§  614.  Presentnieut  upon  Knowledge  of  the  Grand 
Jury. —  ( 1. )  Grounds  of  this  Knoivledge . —  The  grand  jury, 
from  the  earliest  times,  has  preferred  charges  founded  upon 
the  knowledge  of  members  of  the  bod3^■"  Referring  tf)  a 
previous  chapter,  it  will  be  seen  that  the  accusing  body  were 
contemplated  as  presenting  only  upon  this  ground.  Each 
of  the  body  were  sworn  to  "speak  the  truth."*  Later, 
they  swore  to  make  a  true  presentment,  not  only  of  matters 

1  Opinion  of  King,  J.,  ubi  sup.;  Rowand  v.  Com.  82  Pa.  St.  40'),  408; 
McCullough  V.  Com.,  67  Pa.  St.  30,  33;  Brown  v.  Com.,  76  Pa.  St.  319, 
337 ;  Hartranft's  Appeal,  85  Pa.  St.  433, 441 ;  Grand  Jiny  v.  Pnblic  Press, 
4  Brewst.  313;  United  States  v.  Fuei-s,  12  Int.  Rev.  Rec.  43;  Com.  v. 
Jadwin.  1  Cr.  L.  Mag.  231 ;  cliarge  of  Field,  J.,  2  Sawj-er,  673;  Com.  v. 
Crans,  3  Penn.  L.  J.  454;  s.  c.  2  Claris,  185;  Com.  v.  Ridgway,  2  Ashm. 
247,  259. 

^  Rowand  V.  Com.  supra.  Charges  not  made  before  tlie  committing 
magistrate,  or  on  a  presentment,  cannot  be  included  in  an  indictment, 
without  the  official  sanction  of  tlie  district  attorney.  Com.  v.  Simons, 
6  Phila.  167. 

•»  Add.  (Penn.)  Appendix,  38;  Reg.  v.  Russell,  1  Car.  &  M.  247. 

*  Ante,  §  465. 


668  POWERS  OF  THE  GKAND  JURY.       [CH.  XXX. 

and  things  given  in  churgc,  bnt  also  of  all  other  matters  and 
things  which  shonld  come  to  their  knowledge.^  But  some 
judges  have  taken  a  distinction  at  this  point.  In  the  view 
of  these  courts,  the  only  knowledge  of  the  grand  jury  which 
can  properly  serve  as  the  foundation  for  a  presentment,  is 
that  which  is  derived,  not  from  rumors  and  reports,  but 
from  their  own  observation,  or,  incidentally,  from  testimony 
given  before  them.^  To  illustrate  :  While  the  grand  jury  are 
inquiring  into  one  offence,  another  and  a  different  offence 
may  be  proved,  or  the  witnesses  may,  to  their  satisfaction, 
have  been  guilty  of  perjury  in  giving  testimony  before 
them,  in  either  of  which  cases  a  presentment  may  properly 
fDllow.^ 

(2.)  Private  Prosecutor  not  heard  in  certain  Courts. — 
We  have  seen  that  in  England  the  "knowledge"  of  the 
grand  jury  was,  and  is  generally  formed  from  facts  brought 
to  their  attention  by  private  prosecutors  ;  *  but  under  the 
rule  requiring  the  knowledge  of  the  grand  juror  to  be  based 
upon  personal  observation,  the  private  prosecutor  is  rigor- 
ously excluded  from  the  grand  jury  room.^  Thus,  in  the 
charge  of  ^Ir.  Justice  Field,  before  noticed.  Me  find  this 
authorative  statement  of  the  law:  "You  will  not  allow 
private  prosecutors  to  intrude  themselves  into  your  presence, 
and  present  accusations.  Generall}^  such  parties  are  actu- 
ated by  private  enmity,  and  seek  merely  the  gratification  of 
their  personal  malice.    If  they  possess  any  information  justi- 

1  Ante,  §  593. 

2  Charge  of  Field,  J.,  reported  2  Sawyer,  667,  672;  Com.  v.  Crans, 
3  Penn.  L.  J.  454;  s.  c,  2  Clark,  185. 

3  Ibid.  See  also  State  v.  Terry,  30  Mo.  368.  Contra,  State  v.  Robin- 
son, 2  Lea.  114. 

*  Ante,  §  609. 

*  Re  Lloyd  and  Carpenter,  opinion  of  King,  .J.,  5  Fenn.  L.  J.  64;  s.  c. 
3  Clark.  (Penn.)  197;  McCulloiigh  v.  Com. ,67  Pa.  St.  30,  33;  Lewis  v. 
Wake  County,  74  N.  C.  194,  199.  A  presentment  foiind,  not  upon  the 
knowledge  of  any  of  the  grand  jury,  but  upon  the  unsworn  statements  of 
a  person  appearing  befoi'e  them,  should  be  abated  upon  the  plea  of  the 
defendant.  State  v.  Love,  4  Humph.  255.  However,  the  same  court  holds 
that  a  defendant  has  no  right  to  impeach,  by  plea,  the  information  of  the 
grand  juror  upon  whose  knowledge  a  presentment  is  made.  State  v. 
McManus,  4  Humph.  258. 


§    614.]  COMMUNICATIONS  WITH  GR.'VND  JURY.  66d 

fying  the  accusation  of  the  person  agahist  whom  they  com- 
plain, they  should  impart  it  to  the  district  attorney,  who 
will  seldom  fail  to  act  in  a  proper  case.  But  if  the  district 
attorney  should  refuse  to  act,  they  can  make  their  complaint 
to  a  committing  magistrate,  before  Avhom  the  matter  can  be 
investigated  ;  and  if  sufficient  evidence  be  produced  of  the 
commission  of  a  public  offense  by  the  accused,  he  can  be 
held  to  bail  to  answer  to  the  action  of  the  grand  jury. 
When  the  court  docs  not  deem  the  matter  of  sufficient  im- 
portance to  call  your  attention  to  it,  and  the  district  attorney 
does  not  think  it  expedient  to  submit  the  matter  to  your 
consideration,  and  the  private  prosecutor  neglects  to  pro- 
ceed before  the  committing  magistrate,  we  think  it  may  be 
safely  inferred  that  public  justice  will  not  suffer  if  the  mat- 
ter is  not  considered  by  you."  ^ 

(3.)  Commmvication  with  the  Grand  Jury  a  Contempt 
of  Court. — Not  only  are  the  grand  jury  prohibited  from 
making  a  presentment  founded  upon  any  matter  brought  to 
their  attention  by  a  private  prosecutor,  but  courts  holding 
this  view  regard  as  a  high  contempt,  a  written  communica- 
tion to  that  body,  expressive  of  the  particular  views  of  the 
writer,  as  to  what  ought  to  be  their  course  of  action  on  a 
subject,  either  actually  or  likely  to  come  before  them  for 
deliberation  and  decision.  "Individuals"  said  Parsons,  J., 
"  have  no  more  right  to  appear  before  them  to  discuss  mat- 
ters, or  send  them  letters  relative  to  subjects  which  are 
before  them,  or  which  may  come  before  them,  than  they 
would  have  to  communicate  with  a  petit  jury  after  a  charge 
had  been  delivered  from  the  bench,  in  relation  to  a  case 
which  has  just  been  tried."  '^  Accordingly,  a  court  possess- 
ing plenary  power  to  punish  contempts,  will,  by  a  summary 
proceeding,  punish  all  such  communications  with  the  grand 
jury,  as  illegal  obstructions  of  the  administration  of  public 
justice.^     And  this  view  is  sometimes  enforced  by  statutes, 

1  2  Sawyer,  G67,  673. 

■^  Com.  V.  Crans,  3  Penu.  L.  J.  450;  s.  c.  2  Clark,  181. 

^  Ibid.    See  also  charge  of  Field,  J.,  2  Sawyer,  667,  674. 


'670  POWERS  OF  THE  GRAND  JURY.       [CH.  XXX. 

inhibiting  coniniunication.s  with  the  gi-and  jury  upon  pain  of 
punisiiment  for  a  misdemeanor.^ 

§    G15.     (ioneral  Inquisitorial    Powers    of    the    Grand 

Jury. — (1.)  Exprc'KKions  of  Opinion  fiJiowing. — The  views 
expressed  in  the  preceding  section  are  pointedly  contra- 
dicted by  the  oi)inions  and  practice  of  other  courts. 
Referring  to  Serjeant  Hawkins'  definition  of  an  indictment,^ 
we  find  that  the  grand  jury  were  "returned  to  inquire  of 
<dl  offences  in  general  in  the  county,  determinable  by  the 
court  into  which  they  are  returned;"  and  the  constant 
practice,  as  before  stated,  has  been  to  admit  private  prose- 
cutors to  the  grand  jury  room,^  and  earl}'^  authority  for  this 
course  is  found  in  this  country.*  Addison,  J.,  discussing 
the  duties  of  a  grand  jury  in  1792,  said:  '♦  The  matters, 
which,  whether  given  in  charge,  or  of  their  own  knowledge, 
are  to  be  presented  by  the  grand  jury,  are  all  offenses  within 
the  county.  To  grand  juries  is  committed  the  preservation 
of  the  peace  of  the  county,  the  care  of  bringing  to  light, 
for  examination,  trial  and  punishment,  all  violence,  outrage, 
indecency  and  terror,  everything  that  may  occasion  danger, 
disturbance,  or  dismay,  to  the  citizens.  Grand  juries  are 
watchmen^  stationed  by  the  laws,  to  survey  the  conduct 
of  their  fellow  citizens,  and  inquire  where,  and  by 
whom,  public  authority  has  been  violated,  or  our  con- 
stitution or  laws  infringed."^  Chief  Justice  Marshall 
thought  that  the  power  of  the  grand  jury  to  present 
offenders  was  restricted  only  by  the  jurisdiction  of  the 
court.'"'  "They  have  a  right  to  originate  charges  against 
offenders,"  said  Church,  C.  J.,  "  without  forewarnmg 
them    of  their  proceedings  against  them."  ^     "It  is  their 

1  See.  for  example,  Rev.  Stat.  U.  S.,  §  5403. 

2  Ante.,  §  605. 

3  AnU.,  §  GOO.     See  also  Sykes  v.  Dunbar,  Sel.  N.  P.  109. 
■•Opinions  of  Attorneys  General,  Vol.  I,  pp.  41.  43;  United  States  v. 

Tompkins,  2  Crancli  C.  C.  46. 

*  Add.  (Penn.)  Appendix,  47,  48.  36.  See  also  charge  of  Lord  Chief 
Justice  Eyre,  in  the  proceedings  against  Hardy  and  others,  24  How.  St. 
Tr.  201. 

8  United  States  v.  Hill,  1  Brock.  156,  159. 

'  State  V.  Wolcott,  21  Conn.  232,  280. 


§    615.]         INQUISITORIAL  POWERS  OF  GRAND  JUBY.  ()7l 

peculiar   province  to    inform   against,   and    to    present,  all 
offenders  against  the  criminal  laws  of  the  State."  ^ 

(2.)  Positive  Authority  to  this  Efect. —  These  expres- 
sions of  opinion  bristle  with  evidence  of  the  general  inquis- 
itorial power  of  the  grand  jury  to  inquire  of  their  own 
motion  into  offences  of  every  character  punishable  by  the 
court,  of  which  it  is  a  component  part.  Nor  are  the  re- 
jiorts  barren  of  authority  to  show  that  the  grand  jury, 
having  probable  cause  to  suspect  violations  of  law,  may,  in 
accordance  with  their  oath,  diligently  inquire  in  respect  of 
the  same.  In  the  discharge  of  this  duty  they  may  summon 
witnesses  to  a  reasonable  number,  who  are  bound  to  testify 
to  their  knowledge  of  the  matter  in  hand,  with  the  usual 
limitation,  of  course,  that  they  shall  not  be  required  to 
disclose  that  which  would  implicate  themselves.'^  "A 
grand  jury  has  a  general  inquisitorial  power,"  it  was  said 
in  a  recent  case.^  "They  may  ask  a  witness  summoned 
before  them,  without  reference  to  any  particular  offense 
which  is  a  subject  of  inquiry,  what  he  knows  touching  the 
violation  of  any  section  of  the  criminal  code."  ^ 

(3.)  Apparent  from  Form  q/  Oath. — The  form  of  oath 
in  many  States  is  conclusive  of  this  question.  The  grand 
jury  are  bound  thereby  to  present  all  public  offences  com- 
mitted or  triable  in  the  count}'^,  of  which  they  have  or  "can 
obtain"  legal  evidence.''  In  such  jurisdictions  it  is  clear 
that  they  are  not  restricted  in  their  inquiries  to  the  consid- 
eration of  indictments  laid  before  them  by  the  prosecuting 
officer,  nor  to  the  presentment  of  such  matters  as  are  given 
in  charge  by  the  court,  or  offences  against  the  law  coming 
within  the  range  of  their  personal  observation. 


^  King  V.  State,  5  How.  (Miss.)  730,  733,  per  Turner,  J. 

^Ward  y.  State,  2  Mo.  120;  State  v.  Terry,  30  Mo.  368;  MS.  opinion 
of  Catron,  J.,  delivered  in  1851,  in  the  Circuit  Court  of  tlie  United 
States  for  tiie  Middle  District  of  Tennessee,  quoted  in  Wiiarton  Cr.  PI. 
&  Pr.  (_8th  ed.)  §  337,  note. 

^  Ex  parte  Brown,  72  Mo.  83,  94,  [)er  Henry,  J. 

4  Ibid. 

^  Ante,  §  593,  subsec.  2. 


672  POWERS  OF  THE  GRAND  JURY.  [CII.  XXX. 

(4.)  Inquisitorial  Duty  enjoined  by  Statute. — In  many 
jurisdictions,  the  power  of  the  grand  jury  to  enter  into  a 
general  investigation  of  all  offences  within  the  jurisdiction 
of  the  court,  takes  the  shape  of  a  duty  under  particular 
statutory  provisions.  Thus,  the  New  York  Code  of  Crimi- 
nal Procedure  of  1881,  provides,  that  '*  if  a  member  of  the 
grand  jury  know,  or  have  reason  to  believe,  that  a  crime  has 
been  committed  which  is  triable  in  the  county,  he  must 
declare  the  same  to  his  fellow  jurors,  who  must  thereupon 
investigate  the  same."^  And  this  provision  is  found  in  sub- 
stantially the  same  form  in  other  States^  and  Territories.' 
The  Texas  Code  of  Criminal  Procedure  of  1879,  makes  it 
the  duty  of  the  grand  jurors  "to  inquire  into  all  offences 
liable  to  indictment,  of  which  any  of  the  members  may  have 
knowledge,  or  of  which  they  shall  be  informed  by  the  attor- 
ney representing  the  State,  or  any  other  credible  person."  * 

§  616.  Denied  by  some  Courts. — What  was  said  in  the 
previous  section  in  favor  of  the  general  inquisitorial  power 
of  the  grand  jur}'^,  meets  with  frequent  disapproval.  The 
decisions  of  the  Pennsylvania  courts  are  especially  distinct 
upon  this  point. '^  They  all  follow  the  celebrated  opini<^n 
of  King,  J.,  in  the  matter  of  Lloyd  and  Carpenter.'^ 
Upon  this  occasion,  the  grand  jury  presented  a  written  com- 
munication to  the  court,  stating  that  it  had  been  charged 
before  them  by  one  of  their  number,  that  the  persons,  Lloyd 
and  Carpenter,  being  public  officers,  had  converted  to  their 
own  use  public   money.     They  invoked  the  power  of  the 

1  Laws  N.  Y.  1881,  ch.  442,  §  259. 

2  Code  Ala.  1876,  §  4770:  Cal.  Penal  Code,  §  922;  Ark.  Dig.  Stat.  1874, 
§  1757;  Miller's  R.  C.  Iowa,  1880,  §  4277;  Bullitt's  Ky.  Cr.  Code,  §  104; 
2  Stat,  at  Large,  Minn.  1873.  p.  1036,  §  111 ;  Comp.  L.  Nev.  1873,  §  1834; 
Stat.  Tenu.  1871,  §  5081 ;  Gen.  Laws  Oreg.  1872,  p.  347,  §  51.  "On  the 
application  of  the  grand  jury,  subpoenas  must  issue  for  any  witnesses 
wlioni  they  may  require  to  give  evidence  before  them.'"  Code  Ala.  1876, 
§  4774;  R.  S.  Ohio,  1880,  §  7]  98;  Texas  Code  Cr.  Proc.  1879,  Art.  401. 

3  Comp.  L.  Ai'iz.  1877,  §  603;  Gen.  Laws  New  Mexico,  1880,  p.  370,  §  9; 
Laws  Utah,  1878,  §137: 

•»  Art.  400. 

5  Ante,  §  611  at  seq. 

« Ante,  §  612. 


§   616.]  DENTED  BY  SOIME  COURTS.  673 

court  to  compel  the  attendance  of  certain  witnesses,  and  the 
production  of  books  and  papers  in  the  possession  of  the 
officers  accused.  The  request  was  denied.  "  The  charge 
preferred  by  the  grand  juror,"  said  this  distinguished  judge, 
"alluded  to  in  the  communication,  is  clear  and  distinct.  It 
is  one  over  which  every  committing  magistrate  of  the  city 
and  county  of  Philadelphia  has  jurisdiction.  Any  one  of 
this  numerous  body  may  issue  his  warrant  of  arrest  against 
the  accused,  his  subpoena  for  the  persons  and  papers  named, 
and  may  compel  their  appearance  and  production.  And  if 
sufficient  probable  cause  is  shown  that  the  accused  have  been 
guilty  of  the  crimes  charged  against  them,  he  may  bail  or 
commit  them  to  answer  to  this  court."  ^  The  same  views 
found  expression  in  a  charge  delivered  by  Mr.  Justice  Field 
to  a  grand  jury  in  the  United  States  Circuit  Court  for  the 
district  of  California  in  1872.^  The  grand  jury  were  in- 
structed that  their  investigations  must  be  limited  :  "1.  To' 
such  matters  as  may  be  called  to  your  attention  by  the 
court ;  or,  2.  May  be  suljmitted  to  your  consideration  by 
the  district  attorney  ;  or  3.  May  come  to  your  knowledge  in 
the  course  of  your  investigations  into  the  matters  brought 
before  you,  or  from  your  own  observations  ;  or,  4.  May  come 
to  your  knowledge  from  the  disclosure  of  your  associates."  ^ 
In  accordance  with  the  foregoing,  it  has  been  held  that 
witnesses  are  not  bound  to  obey  subpoenas  commanding 
them  to  appear  and  testify,  generally,  before  the  grand  jury, 
"  in  certain  matters  then  and  there  to  be  inquired  of."  ^  It 
was  so  held  where  the  subpoenas  directed  the  witnesses  to 
appear  and  "  to  testify,  all  and  singular,  those  things  which 
they  may  know  touching  a  certain  investigation  being  had, 
on  formal  presentment,  by  and  before  the  grand  jury,  re- 
lating to  the  late  riots  of  July  last  in  said  county,  in  said 
court  depending."  ^ 

1  5  Penu.  L.  J.  64;  s.  c,  3  Clark,  197.      The  high  reputation  of  this 
opinion  justifies  a  more  extended  quotation  than  we  are  able  to  give. 

2  See  2  Sawyer,  667. 
3/d.,673. 

*  Lewis  V.  Lake  County,  74  N.  C.  194. 
5  Hartranft's  Appeal,  85  Pa.  St.  433,  443. 

(43; 


'i)74  rO^>'ERS  OF  TIIK  GRAND  .TIUY.  [CH.  XXX. 

§  f)17,  Spocial  Inquisitorial  Powers. —  In  Ji  former 
c'hnpter  we  have  seen  that  the  statutes  of  many  States  im- 
pose particuhir  duties  of  investigation  upon  the  grand  jury, 
and,  that  these  may  be  efficiently  performed,  they  are  vested 
with  the  necessary  powers.  Tlius,  a  common  provision  is 
that  thev  shall  inquire  into  the  official  misconduct  of  public 
officers  of  every  description  within  the  county,  and  arc  en- 
titled to  an  examination  of  all  its  public  records.'  In  Ten- 
nessee the  grand  jury  have  not  general  inquisitorial  powers  ; 
nevertheless,  under  the  statutes,  they  may,  without  any 
order  of  court,  send  for  and  examine  witnesses  in  a  consid- 
cr^ible  number  of  specified  cases.^  It  is  held  that  the  power 
thus  conferred  is  in  derogation  of  the  common  law,  and  not 
to  be  extended  beyond  the  express  provision  of  the  statute.' 
For  example,  running  a  horse  race,  although  subject  to  the 
penalties  of  gaming,  was  held  to  be  not  within  the  meaning 
of  the  word  "gaming,"  in  a  statute  giving  the  grand  jury 
inquisitorial  powers  in  reference  to  this  offence.    The  policy 

■  of  the  statute  was  said  to  be  "to  ascertain  the  commission  of 
•offences  enumerated  in  the  statute,  which  can  be  committed 
: secretly,  and  to  su[)press  them  by  vigorous  punishment."  * 

This  principle  was  in  one  case  carried  to  a  length  which  can 
^iiardly  be  justified.  It  was  held  that  where  a  witness  was 
properly  summoned  under  the  inquisitorial  powers  of  the 
irrand  jury  to  testify  as  to  certain  offences,  an  indictment 
•could  not  be  found  upon  the  testimony  of  such  witness 
^Avhich  incidentally  disclosed  a  felony  for  the  investigation 

■  of  which  the  statutes  did  not  grant  inquisitorial  powers. £ 
The  indictment  would  seem  to  have  been  properly  found 
■upon  the  knowledge  of  the  grand  jury.'' 

1  Ante,  §  473. 

2  State  V.  Barnes,  5  Lea,  398, 

3  Glenn  v.  State,  1  Swan,  It);  Harrison  v.  State,  4  Coklw.  195;  State 
v.  Smith,  Meigs,  99;  State  v.  Adams,  2  Lea,  G47. 

■•  Harrison  V.  State,  .s«pm.  See  also  State  v.  Adams,  supra-,  State  v. 
-Staley,  3  Lea,  565;  State  v.  Estes,  3  Lea,  168;  State  v.  Parrish,  8  Iliunpli. 
80;  State  v.  Smith,  Meigs,  99;  Harless  v.  United  States,  Morris  (la.), 
.169. 

«  State  V.  Robinson,  2  Lea,  114. 

-«See  ante,  §  614. 


§    618.]  POWER  TO  COMPEL  PRODUCTION  OF  TELEGRAMS         675 

§    618.   Power  to  compel   Production  of  Telegrams. — 

(1.)  Telegrams  not  Privileged  Communications. —  It  is 
believed  to  never  have  been  judicially  determined  that  com- 
munications by  the  telegraph  are  privileged  from  disclosure, 
which  otherwise  would  be  relevant  and  proper  testimony  to 
promote  the  ends  of  justice.  On  the  contrary,  the  courts 
regard  telegraphic  dispatches  as  competent  evidence.^  Nay 
more,  a  telegraphic  operator  is  bound  as  a  witness  to  dis- 
close them.-^ 

(2.)  Hides  of  the  Oompaiiy  and  Statutes  interposing 
Secresy,  notwithstanding. —  The  rule  seems  to  be  settled 
that  the  agent  of  a  telegraph  company  may  be  compelled, 
by  proper  process,  to  produce  such  messages  in  a  court  of 
justice,  in  a  civil  or  criminal  case,  whenever  they  become  ma- 
terial evidence,  notwithstanding  all  rules  of  the  company  to 
the  contrary,  as  well  as  the  statutory  provision,  existing  in 
many  of  the  States,  making  it  a  penal  offence  for  a  servant 
of  a  telegraph  company  to  disclose  the  contents  of  a  mes- 
sage.^ On  principle,  therefore,  it  is  clear  that  the  grand 
jury,  in  those  States  at  least  where  it  is  possessed  of  a  gen- 
eral inquisitorial  power,  may  cause  a  subpoena  duces  tecum 
to  issue  to  compel  a  production  by  the  officer  having  the  tel- 
egrams in  custody.* 

(3.)  Productio7i  ordered  only  upon  Particular  Descrip- 
tion.—  But  the  exercise  of  this  inquisitorial  power  by  the 
grand  jury  cannot  be  too  carefully  hedged   about  with  re- 

^  Com.  V.  Jeffries,  7  Allen,  548;  iSTatioual  Bank  v.  National  Bank,  7 
W.  Va,  544. 

2  State  V.  Litchfield,  58  Me.  267,  269;  s.  c,  10  Am.  L.  Keg.  (N.  S.)  376; 
WaddelPs  Case,  8  Jur.  (JS.  S.)  Part  II.  181;  s.  c,  Allen's  Tel.  Cas.  496, 
note;  Inee'sCase,  20  L.  T.  (N.  S.)  421;  s.  c,  Allen's  Tel.  Cas.  497,  note. 
This  is  strongly  controverted  bj^  Mr.  Justice  Cooley  in  his  authoritative 
work  upon  Constitutional  Limitations  (see  page  307,  note),  and  in  a 
more  exhaustive  discussion  by  him  elsewli'ere.      See  18  Am.  L.  Reg.  65. 

3  Waddeirs  Case,  supra;  Heinsler  v.  Freedman,  2  Pars.  Sel.  Cas.  Eq. 
274;  United  States  v.  Babcock,  3  Dill.  566. 

*  Ex  parte  Brown,  72  Mo.  83;  s.  c,  11  Cent.  L.  J.  491,  overruling  the 
decision  of  the  majority  of  the  St.  Louis  Court  of  Appeals  upon  the  ques- 
tion as  to  the  sufficiency  of  the  identiflcatioii  of  the  telegrams  called  for. 
See  7  Mo.  App.  484;  S  Cent.  L.  J.  378.  See  also  an  exhaustive  discussion 
of  this  subject  by  Henry  Hitchcock,  Esq.,  in  5  So.  Law  Rev.  473. 


676  POWERS  OF  THE  GRAND  JURY.  [CX.  XXX, 

strictions  against  impertinent  curiosity.^  The  familiar  pro- 
\ision  of  the  Federal  Constitution  ^  guaranteeing  to  the  citi- 
zen security  against  unreasonable  searches  and  seizures,  is 
duplicated  in  the  constitution  or  laws  of  every  State.  A 
subpccna  duces  tecum^  commanding  the  agent  of  a  telegraph 
company  to  produce  for  the  inspection  of  a  grand  jury  any 
and  all  dispatches  in  his  possession  which  passed  between 
certain  parties  named,  between  certain  dates  covering  a  con- 
siderable period  of  time,  Avould  seem  to  be  obnoxious  to  the 
constitutional  provision  in  question.^ 

1  The  power  of  a  court  of  equity  to  compel  a  discovery  by  any  party 
defendant  to  the  suit,  of  any  document  in  his  possession,  or  fact  resting 
in  his  knowledge,  material  to  the  plaintiff's  case,  bears  a  close  analogy  to 
that  exercised  under  the  supczna  duces  tecum.  8ee  Ex  parte  Brown,  72  Mo. 
83,  95.  The  court  of  chancery  was  never  prodigal  in  granting  such  ap- 
plications, but.  on  the  contrarj',  maintained  a  scrupulous  regard  for  the 
right  of  security  against  impertinent  intrusion.  See  Wigram  on  Discov- 
ery, 15,  16;  Hare  on  Discovery.  (2d  ed.,  1876),  p.  136,  ch.  2;  Langdell's 
Summary  of  Eq.  PL,  p.  107;  Mitford's  Eq.  PI.  306;  Shaftesbuiy  v. 
Arrowsmith,  4  Ves.  66,  71. 

2  Amend.  4. 

3  Ex  parte  Brown,  72  Mo.  83.  See  also  the  dissenting  opiuion  of  Lewis, 
P.  J.,  when  this  case  was  before  the  St.  Louis  Court  of  Appeals.  7  Mo. 
App.  484,  494.  Eeported  also  in  11  Cent.  L.  J.  115.  Contra,  United 
States  v.  Babcock,  3  Dill.  566. 


^  622.]      PROCEEDINGS  OF  THE  GRAND  JURY.  677 


CHAPTER  XXXI. 


OF  THE  PROCEEDINGS  OF  THE  GRAND  JURY. 


Article  I. —  Preliminary  Proceedings. 
U.—  Sessions  how  far  Secret. 
III. —  Hearing  the  Evidence. 
IV. —  The  Finding. 
V. —  Indorsement  of  Finding. 
VI. —  Other  Indorsements. 
VII. —  Irregularities  in  Proceedings. 


ARTICLE    I. 


PRELIMINARY    PROCEEDINGS. 

SECTION. 

622.  Appointment  of  Foreman. 

623.  Appointment  of  Clerk. 

624.  Summoning-  Witnesses. 

625.  Swearing  Witnesses. 

(1.)  In  Open  Court. 

^2.)  In  Grand  Jury  Room  by  a  Magistrate. 

(3.)  B3^  the  Foreman  and  otlier  Officers  under  Statutes. 

(4.)  Effect  of  sucli  Statutes. 

626.  Form  of  Oatli. 

627.  Custody  of  the  Grand  Jury. 

§  622.  Appointment  of  Foreman. —  The  statutes  gener- 
ally direct  the  court  to  appohit  a  foreman  of  the  body 
before  they  are  sworn,  to  whom  the  oath  is  usually  admin- 


678  PROCEEDINGS  OF  THE  GRAND  JURY.   [CH.  XXXI. 

istered  singly.^  And  generally  the  court  has  povver  to  a[)- 
point  a  substitute  for  the  foreman,  when  that  offieer  is 
excused  or  discharged  before  the  gi-aiid  jury  is  dismissed.^ 
In  Maine,  Massachusetts  and  Michigan,  the  foreman  is 
elected  by  the  grand  jury  after  it  retires  to  the  jury 
room  .^ 

§  623.  Appointment  of  Clerk. —  In  many  of  the  States 
it  is  the  duty  of  the  grand  jury  to  api)oint  one  of  their 
number  a  clerk  to  preserve  minutes  of  their  proceedings 
(except  of  the  votes  of  the  individual  meml)ers  on  a  pre- 
sentment or  indictment),  and  of  the  evidence  given  before 
them.^  In  other  States  the  statutes  merely  authorize  this 
to  be  done.^  Usually  such  minutes  are  delivered  to  the 
attorney  general,  district  attorney,  or  other  prosecuting  offi- 
cer, upon  the  discharge  of  the  grand  jury.^     A  statute  of 

1  Ante,  §§589,  590. 

2  Rev.  Stats.  U.  S.  §  SOS;  Code  Ala.  1876,  §  4753;  Comp.  L.  Ariz.  1877, 
§  583;  Cal.  Penal  Code,  §  902;  Ark.  Dig.  Stat,  1874,  §  1749;  Gen.  Laws 
Colo.  1877,  §  1475;  R.  S.  111.  1880,  p.  651,  §  17;  2  Stat  Ind.  1876,  p.  374, 
§  14;  Miller's  R.  C.  Iowa,  1880.  §  4267;  Comp.  L.  Kan.  1879,  §  4566; 
G.  S.  Ky.  1879,  p.  570,  §  5;  R.  S.  La.  1876,  §  2136;  R.  C.  Md.  1878.  p.  561, 
§  5;  2  Stat,  at  Large,  Minn.  1S73,  p.  1035,  §  96;  R.  S.  Mo.  1879,  §  1771 ; 
Comp.  L.  Neb.  1881,  p.  725,  §  394;  Comp.  L.  Nev.  1873,  §  1815;  New 
York  Code  Crim.  Proc.  1881,  §  245 ;  Gen.  Laws  New  Mexico,  1880,  p.  368, 
§  10;  R.  S.  Ohio,  1880,  §  7190;  Stat  Tenn.  1871,  §  4020;  Gen.  Laws  Oreg. 
1872,  p.  345,  §  36;  Laws  Utah,  1878,  §  126;  G.  S.  Vt.  1862,  p.  332,  §  14; 
Code  Va.  1873,  p.  1237,  §  6. 

3  R.  S.  Me.  1871,  ch.  134.  §  4;  G.  S.  Mass.  1860,  eh.  171,  §7;  Comp.  L. 
Mich.  1871.  §  7883. 

4  New  York  Code  Crim.  Proc.  1881,  §  250;  Miller's  R.  C.  Iowa,  1880, 
§  4275;  Gen.  Laws  Oreg.  1872, p.  346,  §  41;  2  Stat,  at  Large,  Minn.  1873, 
p.  1035,  §  100.     See  also  Gen.  Laws  New^  Mexico,  1880,  p.  369,  §  16. 

5  Texas  Code  Cr.  Proc.  1879,  §  398;  R.  S.  Wis.  1878  §  2550;  Gen.  Stat. 
N.  H.  1867,  ch.  242,  §  7;  R.  S.  Mo.  1879,  §  1780;  Comp.  L.  Mich.  1871,, 
§  7888;  G.  S.  Mass.  1860,  ch.  171,  §  10;  R.  S.  Me.  1871,  ch.  134,  §  7; 
Comp.  L.  Kan.  1879,  §  4573. 

^  It  is  discretionary  with  the  court  to  order  the  prosecution  to  furnish 
the  prisoner  with  the  evidence  used  before  the  grand  jury.  A  refusal 
cannot  be  made  a  subject  of  a  writ  of  error.  Eighmy  v.  People,  79  N.  Y. 
546,  560.  In  denying  a  motion  of  this  kind,  on  one  occasion,  the  court 
said  of  the  motion  papers:  "  They  do  not  state  wherein  any  of  the  pro- 
ceedings of  the  grand  jury  were  irregular,  so  the  court  can  judge  whether 
it  is  a  matter  competent  for  the  defendants  at  this  time  to  challenge  or 
investigate,  or  wherein  au  inspection  is  essential  to  protect  any  right  of 


§    623.]  PRELIMINARY  PROCEEDINGS.  679^ 

Iowa  directs  the  return  of  the  minutes  of  the  testimony  of 
the  witnesses  upon  which  any  indictment  has  been  found. 
These  are  filed  with  the  clerk  of  the  court,  and  "  remain  in 
h^s  office  as  a  record."  ^  It  further  directs  that  these  min- 
utes shall  be  open  to  the  inspection  of  the  defendant  and  hi!> 
counsel  ;  that  a  copy  of  the  same  shall  be  furnished  to  either 
of  the  latter  within  two  days  after  demand  made,  or  they 
shall  be  permitted  to  take  a  copy.'^  A  similar  provision  is 
found  in  Minnesota  with  reference  to  presentments.^  The 
statutes  generally  give  the  defendant  no  further  information 
as  to  the  character  of  the  testimony  upon  which  the  indict- 
ment was  found,  than  by  providing  for  the  indorsement 
upon  the  indictment  of  a  list  of  the  names  of  the  witnesses. 
It  is  believed  the  law  is  sufficiently  gracious  in  making  this- 
concession.  Practitioners  of  Iowa  and  Minnesota  are  doubt- 
less more  capal)le  than  we  to  say  what  is  the  effect  of  the 
provisions  here  noticed.  That  they  must  frequently  serve  a. 
vicious  purpose,  would  seem  clear.  The  prevention  of  sub- 
ornation of  perjury  upon  the  trial  of  the  accused,  is  com- 
monly stated  as  one  of  the  reasons  for  the  obligation  of 
secresy  imposed  upon  the  grand  jurors.  The  oath  of  the 
grand  juror  in  Iowa  imposes  no  injunction  of  secresy,  and 
the  effect  of  this  provision  is  to  inform  the  defendant  spe- 
cifically as  to  the  evidence  against  him.  If  the  State  had  a 
right  to  a  new  trial,  or  any  means  of  vacating  verdicts  of 

the  defendant,  or  wherein  the  non-prodnctioii  of  the  minutes  will  work: 
an  injustice,  or  that  he  cannot  more  properly  derive  all  the  informa- 
tion he  seeks  from  other  sources.  Before  the  court  will  order  the  dis- 
trict attorney  to  produce  any  paper  which  he  has  deemed  it  his  duty  to- 
withhold,  the  party  seeking  such  an  order  must  hring  himself  strictly 
within  the  law."  Per  Pratt,  J.,  (Kings  County  N.  Y.,  Oyer  and  Term- 
iner), in  People  v.  Naugliton,  7  Abb.  Pr.  (N.  S.)  421,  431. 

^  The  minutes  of  the  evidence  thus  returned  cannot  be  contradicted  by 
affidavits  of  grand  jurors,  or  of  witnesses,  showing  that  the  record  does- 
not  contain  all  the  material  evidence  given  before  the  grand  jury.  State- 
V.  Little,  42  Iowa,  51.  They  are  not  admissible  upon  the  trial  as  inde- 
pendent evidence.  State  v.  Ostrander,  18  Iowa,  435.  Or  for  the  purpose  of 
impeaching  a  witness.     State  v.  Ilayden,  45  Iowa,  11. 

2  Rev.  I860,  §  4647;  Code  1S73.  §  4293;  Miller's  Code,  1880,  §  4293. 

3  2  Stat.  atLarge,  1873,  §§120,  123. 


680         PROCEEDINGS  OF  THE  GRAND  JURY.  [CH.   XXXI 

acquittal  obtained  by  fraud  or  perjury,  the  reasons  in  justi- 
fication of  a  rule  which  exposes  the  State's  evidence  to  the 
accused  in  advance  of  the  trial,  would  be  more  clear. 

§  624.  Summoning-  AVitnesses.  —  The  principle  is  well 
established  that  the  grand  jury  is  an  appendage  of  the 
court,^  acting  under  its  authority,  and  that,  for  this  reason, 
all  witnesses,  material  to  the  investigations  of  the  grand 
jury,  are  compelled  to  appear  before  that  body  by  a  sub- 
poena which  issues  from  the  court.  Under  the  English 
practice,  "  if  a  witness  neglect  to  obey  a  subpoena,  on  an 
aflSdavit  that  he  was  material  to  the  prosecutor's  case,  and 
was  duly  served  with  the  subpoena,  the  Court  of  King's  Bench 
will  grant  an  attachment  against  him,  on  which  he  may  be 
takeji  and  committed  till  after  the  trial  of  the  offender, 
when  an  order  will  be  made  for  his  discharge.  If  he  neglect 
to  appear  after  a  recognizance  entered  into  by  him,  such 
recognizance  will  be  forfeited,  and  he  will  be  subject  to  the 
consequences  of  such  forfeiture.  So,  if  he  be  bound  over 
to  appear  and  neglect  to  do  so,  he  may  be  committed  for  a 
contempt.  So  if  he  appears,  but  refuses  to  be  sworn,  he 
may  be  committed  for  a  contempt,  from  which  liability  not 
even   the  privilege  of  peerage  can  excuse  him."- 

§  625.  Swearing-  Witnesses.  —  (1.)  In  open  Court. — 
Under  the  English  practice,  the  witnesses  in  support  of  the 
bill  are  sworn  in  court  and  sent  to  the  grand  jury.'^  Proba- 
bly this  was  the  general  practice  in  early  times  in  this 
country  *  Thus,  in  an  old  North  Carolina  case,  we  find  the 
court  absurdly  punctilious  in  this  matter.  The  grand  jury 
made  a  presentment,  upon  which  a  bill  was  prepared  and 
committed  to  them  for  approval.    The  court  held  that  those 

1  Ante,  §  596. 

2 1  Cliitty  Cr.  L.  3-21,  citing  Kex  v.  Lord  Preston,  1  Salk.  278.  As  to 
the  production  of  documents  before  the  grand  jury,  see  Rex  v.  Hunter, 
3  Car.  &  P.  591. 

3  1  Chitty  Cr.  L.  3-22;  Tlie  Middlesex  Special  Commission,  G  Car.  &  P. 
90. 

*  State  V.  Barnes,  7  Jones  L.  20;  Gilmau  v.  State,  1  Humph.  59.  It 
remains  the  practice  in  South  Carolina.  See  State  v.  Kilcrease,  6  So. 
Car.  444. 


§    (i25.]  PRELIMINARY  PROCEEDINGS.  681 

members  of  the  body,  upon  whose  information  the  present- 
ment hud  been  made,  ought  to  have  been  brought  into 
court,  sworn  and  sent  back  to  their  colleagues  before  the 
bill  was  found  true.^ 

(2.)  In  Grand  Jury  Room  by  a  Magistrate. —  The  Su- 
preme Court  of  Connecticut  attach  no  importance  whatever 
to  the  swearing  in  open  court.  Upon  this  point  it  was,  on 
one  occasion,  said:  "The  custom  of  administering  the 
oath  to  the  witnesses  in  the  jury  room,  by  a  magistrate,  has 
been  uniform  ;  and,  so  far  as  we  are  informed,  no  witness 
has  ever  been  sworn  in  our  courts  and  sent  to  the  grand 
jury  for  examination. "'- 

(3.)  By  the  Foreman  and  other  Officers,  under  Statutes. 
—  At  the  present  time,  the  swearing  of  the  witnesses  in 
open  court  is  quite  generally  dispensed  with  by  statute. 
Thus,  they  may  be  sworn  in  the  grand  jury  room  by  the 
foreman,^  the  prosecuting  attorney,*  the  attorney-general,^ 
any  justice  upon  the  jury,*'  or  a  member  thereof.^     In  Ohio 


1  State  V.  Cain,  1  Hawks,  352. 

2  State  V.  Fasset,  16  Conn.  4G5. 

3  Eev.  Stat.  U.  S.,  §  808;  Code  Ala.  1876,  §  4773;  Comp.  Laws  Ariz. 
1877,  §  599;  Cal.  Penal  Code,  §  918;  Ark.  Dig.  Stat.  1874,  §  1758;  Gen. 
Laws  Colo.  1877,  §  1474;  Code  Ga.  1873,  §  3917;  R.  S.  111.  1880,  p.  651,  § 
17;  2  Stat.  Ind.  1876,  p.  375,  §  14;  Miller's  R.  C.  Iowa,  1880,  §4274; 
Comp.  L.Kan.  1879,  §  4572;  Bullitt's  Ky.  Cr.  Code,  §  106;  K.  S.  La. 
1876,  §  2137;  R.  S.  Me.  1871,  ch.  134,  §  6;  G.  S.  Mass.  1860,  ch.  171,  §  9; 
Comp.  L.  Mich.  1871,  §  7887;  2  Stat,  at  Large  Minn.  1873,  p.  1036,  §  106; 
E.  S.  Mo.  1879,  §  1775;  Comp.  L.  Nev.  1873,  §  1829;  G.  S.  X.  H.  1867, 
ch.  242,  §  6;  Eev.  IST.  J.  1877,  p.  526,  §  8;  New  York  Code  Crim.  Proc. 
1881,  §  253;  Gen.  Laws  New  Mexico,  1880,  p.  370,  §  4;  Bright.  Purd.  Pa. 
Dig.  p.  377,  §  11;  Gen.  Stat.  E.  I.  1872,  p.  434,  §  37;  Stat.  Tenn.  1871,  § 
5092;  Laws  Tenn.  1875,  ch.  30,  §  1 ;  Gen.  Laws  Oreg.  1872,  p.  346,  §  47; 
Laws  Utah.  1878,  §  133 ;  E.  S.  Wis.  1878,  §  2549.  The  validity  of  a  swear- 
ing by  the  foreman  is  not  affected  by  the  circumstance  that  his  appoint- 
ment does  not  appear  upon  the  minutes  of  the  court.  People  v. 
Eoberts,  6  Cal.  214. 

"  Code  Ala.  1876,  §  4773;  E.  S.  Me.  1871,  ch.  134,  §  6;  G.  S.  Mass.  1860, 
ch.  171,  §  9;  Comp.  L.  Mich.  1871,  §  7887;  G.S.  N.  H.  1867,  ch.  242,  §  6; 
E.  S.  Wis.  1878,  §  2549. 

5  E.  S.  Me.  1871,  ch.  134,  §  6;  Comp.  L.  Mich.  1871,  §  7887. 

6  Gen.  Stat.  N.  H.  1867,  ch.  242,  §  6. 

7  Bright.  Purd.  Pa.  Dig.  p.  377,  §  11. 


682  PROCEEDINGS  OF  THE  GRAND  JURY.       [cil.   XXXI. 

the  statutes  expressly  re(|iure  the  witnesses  to  be  sworn  by 
the  clerk  of  the  court. ^ 

(4.)  Effect  of  such  Statutes. — Without  such  a  statute  as 
the  foregoing,  the  foreman  has  no  power,  ex  officio,  to  admin- 
ister an  oath.'^  A  statute  vesting  the  foreman  with  power 
to  swear  the  witnesses,  does  not  abrogate  an  existing  prac- 
tice of  swearing  them  in  open  court  and  sending  them  to  the 
jury.     Either  mode  may  be  i)ursued.^ 

§  G26.  Form  of  Oath. — The  form  of  oath  administered 
under  the  English  practice  varies  from  that  in  general  use  in 
this  country.  This  arises  from  a  difference  in  the  modes  of 
proceeding  before  a  grand  jury,  which  we  have  before 
noticed.  In  England,  a  bill  of  indictment  is  prepared  in  the 
case  of  each  accused  person,  and  sent  to  the  grand  jury  as 
the  basis  of  their  investigations.  With  us,  the  charge  is 
made,  fully  considered  and  sustained  by  the  grand  jury 
before  a  formal  indictment  is  drawn.'*  As  a  result,  in 
England  "  each  witness,  before  he  leaves  the  court,  is  sworn 
that  the  evidence  he  shall  give  to  the  grand  inquest  upon 
the  bill  of  indictment  against  the  defendant,  shall  be  the 
truth,  the  whole  truth,  and  nothing  but  the  truth."  ^  Under 
our  system,  there  is  no  cause  pending  in  court,  or  even 
before  the  grand  jury,  in  the  legal  sense  of  the  term,  at  the 
time  the  witnesses  are  sworn,  and,  as  a  consequence,  no  title 
to  the  proceedings  can  properly  be  given,  or  be  necessary 
to  the  validity  of  the  oath.*^  In  other  words,  a  general  form 
of  oath,  to  jrive  evidence  touch  ins:  criminal  charges  to  be 
laid  l)efore  the  grand  jury,  without  reference  to  any  partic- 
ular person,  is  sufficient.  The  validity  of  the  oath  is  not 
affected  by  introducing  into  it  the  name  of  one  person 
followed  by  "  and  others  ;"  but,  without  this  general  refer- 

1  Rev.  Stat.  Ohio,  1880,  §  7199. 

2  State  V.  Kilcrease,  G  So.  Car.  444. 

3  State  V.  Allen,  83  M.  C.  680. 
*  Ante.  §  GOG. 

•^  1  Ohitty  Cr.  L.  322. 

«  United  States  v.  Reed,  2  Blatch.  435,  4G4,  per  Xelson,  J.  See  also 
State  V.  Freeman,  13  N.  H.  488;  Com.  v.  Smyth,  11  Cush.  473;  People 
v.  Lawrence,  21  Cal.  368,  373;  State  v.  Burgess,  24  Mo.  381,  382. 


§   629.]  SESSIONS  HOW  FAR  SECRET.  683 

ence,  the  witness  can  testify  only  in  the  case  of  the  person 
or  persons  named  in  the  oath.^ 

§  627.  Custody  of  the  Grand  Jury* — It  is  usual  and 
proper  for  the  grand  jury  to  be  phiced  in  charge  of  some 
officer,  the  sheriff,  his  deputy  or  constable,  specially 
sworn  for  that  purpose.  It  is  not,  however,  essential 
that  this  should  be  done.  The  sheriff,  being  a  sworn  offi- 
cer of  the  court,  is  competent  to  act  as  custodian  of  the 
body  without  taking  any  additional  oath.  Where  the 
statutes  prescribe  an  oath  for  the  officer  having  the  jury 
in  charge,  it  must  refer  to  some  person,  like  the  constable, 
not  already  an  officer  of  the  court. ■^ 


AETICLE  II. 


SESSIONS  HOW  FAR    SECRET. 


SECTION. 

629.  Private  Prosecutor  anciently  admitted. 

630.  And  King's  Counsel  in  Cases  of  High  Treason. 

631.  Clerk  and  Police  Officer  under  English  Practice. 

632.  Persons  admitted  under  American  Practice. 

633.  Exception  in  certain  States. 

634.  How  affected  by  Statutes. 

§    629.   Private   Prosecutors  anciently  admitted.  —  The 

session  of  the  grand  jury  is  ordinarily  regarded  as  secret, 
and  so  for  practical  purposes  it  is.  However,  there  are  two 
distinct  stages  in  the  process  of  finding  an  indictment:  1. 
The  hearing  of  the  evidence.  2.  The  deliberation  and  vote 
of  the  grand  jury  thereon.  During  the  first  of  these  stages, 
it  appears  that  the  practice  in  England  from  the  earliest 
times  was  to  admit  the  private  prosecutor.^  After  the 
abolition  of  the  accusing  function  of  the  jury  of  the  hundred,* 

^  United  States  v.  Keed,  sitpra. 
2  State  V.  Perry,  Busb.  (N.  C.)  330. 
8  See  post,  §  630. 
*  Ante,  §  468. 


684  PROCEEDINGS  OF  THE  GRAND  JURY.    [CH.  XXXI. 

and  the  selection  of  a  grand  jury  of  the  county  at  large,  it 
is  obvious  that  if  this  latter  body,  like  the  former,  were 
con  fined  to  the  presentation  of  offences  within  their  own 
knowledge,  they  would  onl}'  imperfectly  perform  their  oflice 
as  an  accusing  body  for  the  entire  county.  We  have  before 
noticed  that,  under  the  English  practice,  the  government 
does  not,  without  the  suggestion  of  aggrieved  persons,  take 
notice  of  violations  of  law  resulting  in  injury  to  particular 
individuals  only.^  By  far,  the  greater  part  of  offences  are 
of  this  description.^  The  persons  thus  legally  entitled  to 
prefer  an  accusation,  are,  in  general,  legally  bound  to  do  so, 
and  for  this  purpose  have  always  had  free  access  to  the 
grand  jury,  and,  according  to  old  authority,  were  per- 
mitted to  be  present  "to  manage  the  evidence  for  finding 
the  bill."  ^  As  to  the  modern  English  practice,  Mr.  Chitty 
says:  "It  is  not  unusual,  except  in  the  King's  Bench, 
where  the  clerk  of  the  grand  juries  attend  them,  to  permit 
the  prosecutor  to  be  present  dui'ing  the  sitting  of  the  grand 
jury,  to  conduct  the  evidence  on  the  part  of  the  crown."  * 
§  630.  And  King's  Connsel  in  Cases  of  High  Treason. 
—  Upon  the  proceedings  against  the  regicides  of  Charles  I, 
it  was  resolved  by  the  judges,  "that  any  of  the  King's 
counsel  might  privately  manage  the  evidence  to  the  grand 
inquest,  in  order  to  the  finding  of  the  bill  of  indictment, 
and  agreed  that  it  should  be  done  privately  ;  it  being  usual 
in  all  cases,  that  the  prosecutors  upon  indictments  are 
admitted  to  manage  the  evidence  for  finding  the  bill ;  and 
the  King's  counsel  are  the  only  prosecutors  in  the  King's 
case,  for  he  cannot  prosecute  in  person.'^  Without  doubt, 
this  practice  was  frequently  attended  with  great  abuse, 
since  we  find  it  later  severely  reprobated  by  a  distinguished 
authority.      "  I  know  not,"  said.  Sir  John  Hawles  **  "  how 

'  Ante,  §  GOO. 
•-'1  Chitty  Cr.  L.  1. 

^Seethe  resolution  of  tlie  judges  upou  tlie  trials  of  the  Regicides, 
in  the  next  section. 
<  1  Chitty  Cr.  L.  316. 
5  Sir  J.  Kelyng,  8;  5  How.  St.  Tr.  972. 
®  Solicitor  General  in  the  reiffu  of  Will.  HI. 


§    G32.]  SESSIONS  HOW  FAR  SECRET.  685 

long  the  practice  in  that  matter  of  admitting  counsel  to  a 
grand  jury  hath  been.  I  am  sure  it  is  a  very  unjustifiable 
and  unsufferablc  one.  If  the  grand  jury  have  a  doubt  in 
point  of  law,  they  ought  to  have  recourse  to  the  court,  and 
that  publicly  and  not  privately,  and  not  rely  on  the  private 
opinion  of  counsel,  especially  King's  counsel,  who  are,  or 
at  least  behave  themselves  as  if  they  were  parties."  ^ 

The  practice  later  seems  to  have  fallen  into  disuse.  An 
instance  is  noted  in  1794,  Avhere  the  King's  counsel  were 
admitted  to  a  grand  jury,  convened  upon  a  special  commis- 
sion of  oyer  and  terminer  to  inquire  of  certain  treasons,  but 
this  was  at  the  desire  of  the  grand  jury,  and  by  leave  of  the 
court. ^  Two  years  after  this  date,  during  the  examination 
of  certain  charges  of  high  treason,  the  solicitor  of  the 
Treasury,  acting  for  the  attorney  general,  requested  of  the 
grand  jury  that  he  be  admitted.  The  grand  jury,  after 
debating  upon  the  matter  some  time,  determined  that,  con- 
sistentl}^  with  their  oath,  no  person,  however  exalted  his 
station,  could,  if  not  a  witness  upon  the  occasion,  be  present 
whilst  the  jury  were  making  their  inquest  into  the  charges 
in  any  indictment.  The  solicitor  was,  therefore,  not 
admitted.^ 

§  631.  Clerk  and  Police  Officer  under  English  Practice. 
— Underthe  English  practice,  at  least  in  the  Queen's  Bench,  it 
seems  to  be  not  uncommon  to  admit  a  clerk  to  the  grand  jury 
room,  having  in  charge  the  evidence  taken  before  the  com- 
mitting magistrate,  in  order  that  any  discrepancies  between 
the  testimony  given  upon  the  preliminary  examination  and 
that  before  the  grand  jury  may  be  noted. ^  A  police  ofiicer 
may  also  be  stationed  within  the  grand  jury  room.^ 

§  632.  Persons  admitted  luider  American  Practice. — 
In  1852,  Mr.  Justice  Nelson  stated  it  to  be  the  uniform 
practice  in  the  State  and  Federal  courts,  for  the  clerk  and 

1  5  How.  St.  Tr.  972,  note. 

2  5  How.  St.  Tr.  972,  note. 

3  Rex  V.  Crossfield,  8  How.  St.  Tr.  773,  note. 

*  1  Chitty  Cr.  L.  316;  Keg.  v.  Hughes,  1  Car.  &  K.  519,  526. 

*  Reg.  V.  Hughes,  supra. 


686  PROCEEDINGS  OF  THE  GRAND  JUltY.        [CH.  XXXI. 

assistant  of  the  district  attorney  to  attend  the  grand  jury, 
and  assist  in  investigating  the  accusations  presented  before 
it.  "That"  said  he,  ''has  been  the  practice,  to  my  knowl- 
edge, witliout  question,  ever  since  I  have  had  any  connec- 
tion with  the  administration  of  criminal  justice.  *  *  * 
We  cannot,  at  this  late  day,  overturn  a  uniform  practice  that 
has  been  settled  for  so  long  a  time."  ^ 

The  mere  presence  of  a  bailiff  of  the  court  in  attendance 
upon  the  grand  jury  during  their  investigation  of  a  criminal 
charge,  is  not  a  snfficient  ground  of  objection  against  the 
indictment,  if  he  was  not  present  when  the  vote  was  taken 
upon  the  finding  of  the  indictment.^  The  only  objection 
which  can  arise  out  of  the  presence  of  proper  oiEcers  before 
the  grand  jury,  is  that  they  have  abused  the  privilege  con- 
ferred.^ It  has  been  held  that  the  fact  that  the  prosecuting 
officer  or  his  assistants  were  present  during  the  deliberations 
and  the  voting  of  the  grand  jury,  will  not  per  se  invalidate 
their  finding.*  But  the  soundness  of  this  decision  may  be 
doubted.  Their  very  presence  at  such  a  time  would  seem 
to  be  an  abuse  of  their  official  privilege. ° 

§  633.  Exception  in  Cei-tain  States. —  The  practice,  as 
indicated  in  the  previous  section,  is  not  universal.  In  an 
early  Connecticut  case,''  the  Supreme  Court,  in  order  to 
solve  some  doubts  which  had  been  expressed  as  to  the  power 
and  duty  of  the  grand  jury,  prepared  a  model  charge,  in 
which  is  found  the  following  :  "You  will  admit  no  counsel 
on  the  part  of  the  State  or  of  the  prisoner."  In  a  recent 
opinion   of  the    Supreme   Court  of  North  Carolina,  it  was 

1  United  States  v.  Heed,  2  Blatch.  435,  455.  See  also  State  v.  Whitney, 
7  Oreg.  386;  Ex  parte  Crittenden.  Hempst.  176;  charge  of  Field,  J.,  2 
Sawyer,  678;  Shattuck  v.  State,  11  Ind,  473.  It  is  not  necessary  that  the 
assistants  of  the  district  attorney  shonld  be  sworn  as  deputy  prose- 
cutors.    Shal  tuck  V.  State,  sM;>ra. 

2  State  V.  Kimball,  29  Iowa  267. 

3  United  States  v.  Eeed,  2  Blatch.  435,  455;  Shattnck  v.  State,  11  Ind. 
473. 

*  Shattuck  V.  State,  supra. 

estate  V.  Kimball,  29    Iowa  267;  Charge  of  Field,  J.,  2  Sawy.  678; 
Rothschild  v.  State,  7  Tex.  App.  519. 
f  Lung's  Case,  1  Conn.  428. 


§   634.]  SESSIONS  HOW  FAR  SECRET.  687 

bluntly  said  :  "  The  solicitor  has  no  business  in  the  grand 
jury  rooni."^  In  South  Carolina  it  was  not  the  practice, 
up  to  1870,  to  admit  the  prosecuting  officer, *  but  later  it 
was  held  that  he  might,  at  the  request  of  the  foreman,  enter 
the  grand  jury  room  to  instruct  this  officer  how  to  write  the 
findings.^  The  Supreme  Court  of  Mississippi  hold  that  per- 
mission cannot  properly  be  granted  to  an  attorney,  employed 
to  assist  in  the  prosecution,  to  go  Ijefore  the  grand  jury  with 
the  witnesses,  and  there  act  for  the  district  attorney  in 
framing  the  indictment.*  A  fortiori,  an  indictment  was 
quashed,  where  it  appeared  that  two  attorneys,  hired  to  assist 
the  prosecuting  officer,  were  admitted  to  the  grand  juiy 
room,  one  of  whom  read  to  the  grand  jury  extracts  from 
hiw  books,  and  the  other  advised  them  that  it  was  their 
duty  to  find  the  bill  true  if  they  had  grounds  for  "  reasona- 
ble suspicion  of  guilt."  ^ 

§  634.  How  affected  hy  Statutes.  —  The  statutes  of  a 
considerable  number  of  the  States  distinctly  specify  the 
duty  and  privilege  of  the  prosecuting  officer  in  the  matter 
of  attendance  upon  the  grand  jury.  Thus,  he  must  attend, 
when  required  by  the  grand  jury,  to  examine  witnesses  ;** 
and  so  he  may  whenever  he  deems  his  presence  necessary 
for   this   purpose.'     He  must,  also,  when  required  by  the 

1  Lewis  V.  Wake  County,  74  X.  C.  194,  198,  per  Byniim,  J. 

2  State  V.  Addison,  2  So.  Car.  356,  365. 

3  State  V.  McNincli,  12  So.  Car.  89,  95. 

^  Durr  V.  State,  53  Miss.  425.     Contra,  State  v.  Whitney,  7  Oreg.  386. 

5  State  V.  Addison,  2  So.  Car.  356,  365.  For  a  rebuke  of  a  flagrant  and 
successful  attempt  of  an  hired  prosecutor,  in  the  capacity  of  a  witness, 
to  influence  the  finding  of  tiie  grand  jury,  see  United  States  v.  Farring- 
ton,  2  Crim.  L.  Mag.  525;  s.  c,  5  Fed.  Eep.  343. 

«  Code  Ala.  1876,  §  4775 ;  Miller's  E.  C.  Iowa,  1880,  §  4281 ;  Comp.  L. 
Kan.  1879,  §§  1564,  4575;  Bullitt's  Ky.  Cr.  Code,  §  109;  Comp.  L.  Mich. 
1871,  §  7892;  2  Stat,  at  Large  Minn.  1873,  p.  1037,  §  114;  R.  S.  Mo.  1879, 
§  1781;  Comp.  L.  Nev.  1873,  §1837;  R.  S.  Ohio,  1880,  §  7195;  Gen.  Laws 
Oreg.  1872,  p.  347,  §  56;  R.  S.  Wis.  1878,  §  2551;  New  York  Code  Crim. 
Proc.  1881,  §  263.  See  also  Comp.  L.  Ariz.  1877,  §  606;  Gen.  Laws 
i\ew  Mexico,  1880,  p.  370,  §  12;  Laws  Utah,  1878,  §  140. 

'  Cal.  Penal  Code,  §  925;  Ark.  Dig.  Stat.  1874,  §  1767;  R.  S.  Mo.  1879, 
§  1782;  Comp.  L.  Neb.  1881,  p.  726,  §  399;  R.  S.  Ohio,  1880,  §  7195; 
Tex.  Code  Cr.  Proc.  1879,  Art.  391.     See,  also.  Laws  Utah,  1878,  §  140. 


688         TROCEEDINGS  OF  THE  GRAND  JURY.   [CH.  XXXI. 

grjind  jury,  attend  for  the  purpose  of  giving  that  body  legal 
advice  or  information  as  to  any  matter  connected  with  tlieir 
duties  ;^  and  so  he  may  whenever  he  deems  it  necessary.^ 
Neither  he  nor  any  other  person  can  be  present  during  their 
deliberations,  or  when  the  vote  is  taken  upon  any  matter 
before  them -3  The  presence  of  this  officer  upon  the  ex- 
cei)ted  occasions  gives  the  accused  a  right  to  demand  that 
the  indictment  shall  be  set  aside* 


ARTICLE  III. 


HEARING    THE    EVIDENCE. 

SECTION. 

636.  Proceedings  ex  parte. 

637.  Practice  in  Connecticut. 

638.  Exception  to  the  General  Rule  suggested. 

639.  And  authorized  bj^  Statute. 

640.  Witnesses  called  in  Discretion  of  Prosecuting  Officer. 

641.  The  Best  Evidence  required. 

642.  Effect  of  hearing  Incompetent  Evidence. 

1  Code  Ala.  1876.  §  4775;  Cal.  Penal  Code,  §  925;  Ark.  Dig.  Stat.  1874, 
§  1766;  Miller's  R.  C.  Iowa,  1880,  §  4281;  Comp.  L.  Mich.  1871,  §  7892;  2 
Stat,  at  Large  Minn.  1873.  p.  1037,  §  114;  R.  S.  Mo.  1879,  §  1781;  Stat. 
Tenn.  1871,  §  5082;  Gen.  Laws  Greg.  1872.  p.  347,  §  56;  Texas  Code  Cr. 
Proc.  1879,  Art.  396;  Laws  Utah,  1878,  §  140;  R.  S.  Wis.  1878,  §  2951; 
New  York  Code  Crim.  Proc.  1881,  §  263.  See,  also.  Gen.  Laws  New 
Mexico,  ISSO,  p.  370,  §  12. 

2  R.  S.  Mo.  1879,  §1782;  Tex.  Code  Cr.  Proc.  1879,  Art.  395;  Laws 
Utah,  1878,  §  140;  New  York  Code  Crim.  Proc.  1881,  §  264;  Cal.  Penal 
Code,  §  925;  Comp.  L.  Kan.  1879,  §  1564;  Comp.  L.  Neb.  1881,  p.  726,  § 
399;  Comp.  L.  Nev.  1873.  §  1837;  R.  S.  Ohio,  1880,  §  7195.  See  also 
Comp.  L.  Ariz.  1877,  §  606. 

3  Code  Ala.  1876,  §  4775;  Cal.  Penal  Code,  §  925;  Ark.  Dig.  Stat.  1874. 
§  1767;  Miller's  R.  C.  Iowa,  1880,  §  4282;  Bullitt's  Ky.  Cr.  Code,  §  110; 
Comp.  L.  Mich.  1871,  §  7894;  R.  S.  Mo.  1879,  §  1782;  New  York  Code 
Crim.  Proc.  1881,  §  264;  Comp.  L.  Nev.  1873,  §  1837;  Comp.  Stat.  Neb. 
18S1,  p.  720,  §  399;  R.  S.  Ohio,  1880,  §  7195;  Stat.  Tenn.  1871,  §  5082; 
Tex.  Code  Cr.  Proc.  1879,  Art.  395.  See,  also,  Laws  Utah,  1878,  §  140; 
Comp.  L.  Ariz.  1877,  §  606. 

4  Rothschild  v.  State,  7  Tex.  App.  519. 


§    636.]  HEARING  THE  EVIDENCE.  689 

643.  Accused  may  voluntarily  testify. 

644.  Testimony  of  Grand  Jurors. 

645.  Quantum  of  Evidence  necessary. 

646.  Jurors  Judges  of  the  Credibility  of  Witnesses. 

647.  Power  to  Coerce  Witnesses. 

648.  Sanity  of  Accused  need  not  be  shown. 

649.  An  Indictment  substituted  without  Evidence. 

§  636.  Proceeding's  ex  parte In   a  former  chapter  it 

has  been  seen  that,  at  common  huv,  the  proceedings  of  the 
grand  jury  were  looked  upon  as  so  distinctly  ex  parte  and 
preliminary,  that  no  right  of  challenge  to  grand  jurors  ex- 
isted, although  in  the  case  of  petit  jurors,  the  provisions  of 
the  law  were  replete  with  expedients  for  securing  an  impar- 
tial trial.'  The  same  view  was  and  is  enforced  upon  hearing 
the  testimony.  The  defendant  has  no  right  to  have  counsel, 
or  any  person  skilled  in  the  law,  present  as  an  advocate  in 
his  behalf.-  The  general  rule  is,  that  the  grand  jury  are  to 
hear  evidence  only  in  support  of  the  charge,  and  not  in  ex- 
culpation of  the  defendant.^ 

The  policy  of  this  rule  is  apparent  from  the  remarks  of 
Addison,  J.,  on  the  duties  of  a  grand  jury:  "If"  said  he, 
■"  witnesses  brought  forward  by  the  accused  person  were  to  be 
heard  in  his  defence  before  the  grand  jury,  and  thej'^  should 
find  the  charge  true,  this  would  approach  so  near  to  a  convic- 
tion, that  the  traversing  of  the  indictment  afterwards,  and  the 
trial  by  the  traverse  jury  would  appear  nugatory,  and  might 
be  abolished.  The  finding  of  the  bill  would  raise  such  an 
opinion  and  presumption  of  the  guilt  of  the  accused  person, 
as  must  be  a  bias  in  the  minds  of  all  men  ;  and  the  prisoner 
could  not  come  before  the  traverse  jury  with  a  hope  of  that 
impartialit}'  in  his  judges,  which  the  constitution  of  a  jury 
trial  supposes  him  to  expect. 


"  4 


1  Ante^  §  507  et  seq. 

2  1  Chitty  Cr.  I..  817. 

3  2  Hale  P.  C.  157;  2  Hawk.  P.  C,  c.  25,  §  145,  note;  Add.  (Pa.)  Rep. 
App.  3S;  Lung'  sCase,  1  Conn.  428;  Kespublica  v.  Shaffer,  1  Dali.  236; 
United  States  v.  Palmer,  2  Cranch  C.  C.  11 ;  United  States  v.  Blodgett, 
35  Ga.  336. 

4  Add.  Pa.  Rep.  App.  41. 

(44) 


690  PROCEEDINGS  OF  THE  GRAND  JURY.    [CH.  XXXI. 

§  637.  Practice  in  Connecticut. — In  an  early  Connecti- 
cut case,  the  Supreme  Court  of  that  State,  in  order  to 
resolve  some  doubts  Avhich  existed  i-elative  to  the  powers 
and  duties  of  the  grand  jury,  prepared  a  model  charge  in 
which  it  was  said:  *' You  will  cause  the  prisoner  and  the 
witnesses  to  come  before  you.  You  will  admit  no  counsel 
on  the  part  of  the  State  or  of  the  prisoner.  You  will  per- 
mit the  prisoner  to  put  any  proper  questions  to  the  wit- 
nesses, but  not  to  call  any  witnesses  on  his  part."  ^  This  per- 
mission to  be  present  during  the  examination  of  the  wit- 
nesses, was  always  regarded  as  a  piece  of  liberality  accorded 
to  the  prisoner  by  the  grace  of  the  court. ^  He  could  not 
demand  it  as  a  matter  of  right.  In  a  late  case  it  was  said 
by  that  court:  "  It  always  rested  in  the  discretion  of  the 
court  to  grant  the  privilege  or  to  deny  it,  and  the  rule  in 
Lunges  Case  was  not  intended  to  interfere  Avith  the  exercise 
of  that  discretion.  The  grand  jury  had,  therefore,  no- 
authority,  unless  directed  by  the  court,  to  cause  the  defend- 
ant to  come  before  them."  ^ 

§  638.  Exception  to  the  General  Rule  suggested. — The 
seeming  harshness  of  the  rule  excluding  all  testimony  on 
behalf  of  the  accused,  has  led  to  some  qualification  of  it. 
Thus,  it  is  said  that,  with  the  consent  of  the  prosecution^ 
witnesses  for  the  defendant  may  be  sent  to  the  grand  jury.* 
Mr.  Chitty  observes  upon  this  point :  "  The  true  intention 
seems  to  be,  that,  prima  facie,  the  grand  jury  have  no  con- 
cern with  any  testimony  but  that  which  is  regularly  offered 
to  them  with  the  bill  of  indictment,  on  the  back  of  which 
the  names  of  the  witnesses  are  inserted ;  their  duty  being 

1  Lung's  Case,  1  Conn.  428. 

2  State  V.  Fasset,  16  Conn.  469. 

3  State  V.  Hamlin,  47  Conn,  95, 105. 

*  United  States  v.  White,  2  Wasli.  C  C.  20.  However,  the  contrary 
was  ruled  on  one  occasion  by  Erskine,  J.,  of  the  U.  S.  District  Court  for 
the  Southern  District  of  Georgia.  '•'No  such  promise  or  agreement"  said 
he,  "can  have  the  sanction  of  this  court.  To  allow  evidence,  either  oral 
or  written,  to  go  before  the  grand  inquest  on  behalf  of  a  defendant,, 
would  be  subversive  of  the  ancient  and  well  settled  rules  of  courts  of 
justice."    United  States  v.  Blodgett,  35  Ga.  336,  339. 


§  ()40.]  HEARING  THE  EVIDENCE.  691 

merely  to  inquire  whether  there  be  sufficient  ground  for 
putting  the  accused  party  on  his  trial  before  another  jury 
of  a  different  description.  But  if  they  are  unable  to  satisfy 
themselves  of  the  truth  sufficiently  to  warrant  their  deter- 
mination, they  may  properly  seek  other  information  relative 
to  mere  facts,  but  further  than  this  they  cannot  proceed."  ^ 
In  accordance  with  this  view,  Mr.  Justice  Field  on  one 
occasion,  charged  a  grand  jury  :  "  You  will  receive  all  the 
evidence  presented  w^iich  may  throw  light  upon  the  matter 
under  consideration,  whether  it  tend  to  establish  the  inno- 
cence or  the  guilt  of  the  accused.  And  more:  If,  in  the 
course  of  your  inquiries,  you  have  reason  to  believe  that 
that  there  is  other  evidence,  not  presented  to  you,  within 
your  reach,  which  would  qualify  or  explain  away  the  charge 
under  investigation,  it  will  be  your  duty  to  order  such  evi- 
dence to  be  produced." ^ 

§  639.  And  authorized  by  Statute. —  What  has  just  been 
suggested,  as  a  proper  qualification  of  the  general  rule,  has, 
in  many  States,  been  sanctioned  by  statutory  provisions 
similar  to  that  found  in  the  New  York  Code  of  Criminal 
Procedure  of  1881.  It  is  here  enacted  as  follows:  "  The 
grand  jury  is  not  bound  to  hear  evidence  for  the  defendant ; 
but  it  is  their  duty  to  weigh  all  the  evidence  submitted  to 
them,  and  when  they  have  reason  to  believe  that  other  evi- 
dence, within  their  reach,  will  explain  away  the  charge, 
they  should  order  such  evidence  to  be  produced ;  and,  for 
that  purpose,  may  require  the  district  attorney  to  issue  pro- 
cess for  the  witnesses."^ 

§  640.  Witnesses  called  in  Discretion  of  Prosecuting' 
Officer. —  It  is  not  usual  for  the  court  to  give  directions 
regarding  witnesses  to  be  called  before  the  grand  jury 
The  prosecuting  attorney  sends  such  as  he  believes  to  be 

1  1  Chitty  Cr.  L.  318. 

2  2  Sa\v}\  667.  670. 

3  Sec.  257.  See  also  Cal.  Penal  Code,  §  920;  Ark.  Dig.  Stat.  1874,  § 
1759;  Miller's  K.  C.  Iowa,  1880,  §  4276;  Bullitt's  Ky.  Cr.  Code,  §  107;  2 
Stat,  at  Large  Minn.  1873,  p.  1036,  §  109;  Comp.  L.  Nev.  1873,  §  1832- 
Gen.  Laws  New  Mexico,  1880,  p.  370,  §  7;  Gen.  Laws  Oreg.  1872,  p.  346.. 
§  49 ;  Laws  Utah,  1878,  §  185.     See  People  v.  Tinder,  19  Cal.  359. 


692  PROCEEDINGS  OF  THE  GRAND  JURY.    [CH.  XXXI. 

necessary.  However,  it  seems  that,  upon  special  reasons 
susfgested  on  application,  the  court  will  give  such  direc- 
tions.^ 

§  641.  The  Best  Evidence  required. -— Although  the 
hearing  of  the  testimony  is  largely  removed  from  the  su- 
perintendence of  the  court,  the  prosecuting  officer  should 
never  attempt  to  introduce  testimony,  which,  upon  a  jury 
trial,  would  be  regarded  as  incompetent.  "With  respect 
to  the  Icind  of  evidence  which  a  grand  jury  may  receive," 
says  Mr.  Chittv,  "  it  should  be  observed  that  they  are 
l)Ound  to  take  the  best  legal  proof  of  which  the  ccse  admits, 
and  it  must  be  given  on  oath."'^  The  statutes  of  many  of 
the  States  expressly  provide  that  the  grand  jury  shall 
receive  only  legal  evidence,^  and  others  further  specify  that 
the  evidence  must  be  that  which  is  the  best  in  degree.* 
They  can  receive  no  other  evidence  than  such  as  is  given  by 
witnesses  produced  and  sworn  before  them,  or  furnished 
by  legal  documentary  evidence.^  Depositions  and  the  tes- 
timony taken  before  an  examining  magistrate  may  be 
received  in  certain  cases." 


1  State  V.  Wolcott,  21  Conn.  272,  280. 

2  1  Chitty  (;r.  L.  318.  See  also  Eex  v.  Willett,  6  Term  Rep.  294; 
Deiiby"s  Case,  Leach  C.  C.  580;  United  States  v.  Keecl,  2  Blatch.  435, 
457.  per  Nelson.  J. 

3  New  York  Code  Criin.  Proc.  1881.  §  256;  Ark.  Dig.  Stat.  1874.  §  1759; 
BiiUitfs  Ky.  Cr.  Code,  §  107;  Cal.  Penal  Code,  §  919;  2  Stat,  at  Large 
Minn.  1873,  p.  1036,  §  108;  Comp.  L.  Nev.  1873,  §  1831;  Gen.  LawsOreg. 
1872,  p.  346,  §  48.  See  also  Comp.  L.  Ariz.  1S77,  §  602;  Gen.  Laws 
New  Mexico,  1880.  p.  370,  §  5;  Laws  Utah,  1878,  §  134. 

^  Sratmes  of  California,  Minnesota,  Nevada  and  Oregon,  cited  swjo?-a. 

^NewY-.rk  Code  Crim.  Proc.  1881,  §  255;  Code  Ala.  1876,  §  4776; 
Cal.  Penal  Code.  §  919;  Miller's  R.  C.  Iowa,  1880,  §  4273;  2  Stat,  at 
Large  Minn.  1873,  p.  1036.  §  107;  Comp.  L.  Nev.  1873,  §  1830.  See 
also  Comp.  L.  Ariz.  1877,  §  919:  Gen.  Laws  New  Mexico,  1880,  p.  370, 
§5;  Laws  Utah.  1878,  §134. 

c  New  York  Code  Crim.  Proc.  1881,  §  255;  Cal.  Penal  Code,  §  919; 
Ark.  Dig.  Stat.  1874,  §1768;  Mider's  R.  C.  Iowa,  1880,  §§  4273,  4289; 
Bullitfs  Ky.  Cr.  Code,  §  115;  Comp.  L.  Nev.  1873,  §  18;50.  See  also 
Laws  U  ail.  1878,  §  134.  It  is  no  objection  to  an  indictment  that  it  is 
fonnded  soltdy  upon  this  kind  of  evidence.  People  v.  Stuart,  4  Cal. 
18;  Sparrenbe rger  v.  State,  53  Ala.  481,  486. 


§    642.]  HEARING  THE  EVIDENCE.  093 

§  642.   Effect  of  hearing  Incompetent  Evidence. —  But 

from  the  very  fact  that  the  testhnouy  is  given  apart  from 
the  audience  of  the  court,  and  frequently  in  the  absence  of 
the  prosecuting  officer,  it  cannot  be  expected  that  a  body  of 
men,  ignorant  of  the  technical  rules  of  evidence,  should  not 
frequently  transgress  them.  Accordingly,  it  has  been  ob- 
served that  it  would  be  found  intolerable,  in  practice,  to 
confine  them  to  technical  rules  of  evidence.^  "  Whether 
witnesses  are  competent,"  said  Dillon,  J.,  "is  often  a  very 
difficult  question  of  law,  and  to  hold  that,  if  the  grand  jury, 
in  the  course  of  their  investigation,  happen  to  examine  an 
incompetent  witness,  this  will  have  the  effect  to  vitiate 
their  finding,  is  going  a  step  further  than  we  are  prepared  to 
take."  2 

However,  this  distinction  may  be  taken,  that  if  there  be 
nothing  to  support  the  bill  but  incompetent  evidence,  the 
indictment  must  be  set  aside. "^      In  a  case  of  this  kind  the 

1  State  V.  Woleott,  21  Conn.  272,  2S0,  per  Church,  C.  J.  See  also 
State  V.  Boyd,  2  Hill  (S.  C),  288,  289. 

'  Dillon,  J.,  in  State  v.  Tucker,  20  Iowa,  §08,  510.  See  also  State  v. 
Fasset,  16  Conn.  457,472;  Bloomer  v.  State,  3  Sneed,  66;  People  v. 
Strong,  1  Abb.  Pr.  (N".  S.)  244;  Hope  v.  People,  83  N.  Y.  418;  State  v. 
logan,  1  Nev.  509;  Turk  v.  State,  7  Ohio  (Part  H.),  242.  But  see  Peo- 
ple V.  Briggs,  60  How.  Pr.  17 ;  Steele  v.  State,  1  Tex.  142. 145.  In  Com. 
V.  Knapp,  9  Pick.  495,  496,  Chief  Justice  Parker  said  :  "■  If  anything  im- 
proper shall  be  given  in  evidence  before  the  grand  ]\.\\'}\  the  error  may 
be  corrected  subsequent^ly  upon  the  trial  before  the  petit  jury."  The 
tfori'ection  adverted  to  doubtless  means  nothing  more  than  tliat  the  evi- 
dence would  be  rejected  when  again  offered. 

3  State  V.  Logan,  1  Nev.  509;  People  v.  Naughton,  7  Abb.  Pr.  (IST.  S.), 
421,r424;  People  v.  Kestenblatt,  1  Abb.  Pr.  268;  Hope  v.  People,  83  N. 
Y.  418;  Sparrenberger  v.  State,  53  Ala.  481,  486;  Steele  v.  State,  1  Tex. 
142,  145;  State  v.  (]ain,  1  Hawks,  352;  State  v.  Fellows,  2  Hayvv.  340; 
United  States  v.  Farrington  (U.  S.  Dist.  Court,  N.  D.  New  York,  1881), 
2  Crim.  Law  Mag.  525;  s.  c,  5  Fed.  Rep.  343;  Com.  v.  Knapp,  9  Pick. 
496,  498.  per  PiUnam,  J.  In  Eex  v.  Dickinson,  Russ.  &  Ry.  C.  C.  401, 
the  witnesses  l)efore  the  grand  jury  were  not  sworn,  which  objectiou 
was  made  after  the  prisoner  had  been  dulj''  convicted.  The  justices 
without  deciding  upon  the  validity  of  the  objection,  directed,  as  a  matter 
of  discretion,  that  an  application  be  made  for  a  pardon.  A  conviction 
in  such  a  case  would  seem  to  be  a  nullity.  The  Middlesex  Special  Com- 
mission, 6  Car.  &P.  90.  Tiie  indictment  certainly  ought  to  be  quashed 
for  this  reason,  upon  motion  seasonablytaken.     United  States  v.  Cool- 


(51)4  PROCEEDINGS  OF  THE  GRAND  JURY.        [CII.  XXXI. 

court  observed:  "  It  is  not  intended  to  suo-o-est  that  when- 
ever  incompetent  testimony  is  received  by  a  grand  jury,  its 
reception  is  such  error  or  irreguhirity  as  to  vitiate  their 
tinding,  nor  to  hold  that  the  evidence  upon  which  an  indict- 
ment is  found  shall  be  such  as  the  court  would  regard  as  mak- 
ing out  a  2))-ima  facie  case  against  the  accused.  It  is  not  the 
province  of  the  court  to  sit  in  review  of  the  investigations  of 
a  grand  jury,  as  upon  the  review  of  a  trial  when  error  is 
alleged  ;  but  in  extreme  cases,  when  the  court  can  see  that 
the  tinding  of  a  grand  jury  is  based  upon  such  utterly  insuf- 
iicient  evidence,  or  such  palpably  incompetent  evidence,  as 
to  indicate  that  the  indictment  resulted  from  prejudice,  or 
was  found  in  wilful  disregard  of  the  rights  of  the  accused, 


idge,  2  Gall.  364;  State  v.  Koberts,  2  Dev.  &  B.  540,  542;  Biddle/s  Case, 
cited  in  State  v.  Fasset,  16  Conn.  464;  People  v.  Naughtou,  7  Abb.  Pr. 
X.  S.),421,  424,  per  Pratt,  J.  But  in  a  case  at  nisi  prius,  where,  dur- 
jng  the  trial  the  objection  was  made  that  the  swearing  of  the  witnesses  be- 
fore the  grand  jury  had  not  been  in  regular  form,  Gurney,  B.,  and  Wight- 
man,  J.,  are  rei)ortcd  as  being  of  opinion  thac  the  alleged  irregularity 
••was  a  matter  which  they  ought  not  to  inquire  into;  and  also  that  the 
mode  of  swearing  the  witnesses  to  go  before  the  grand  jur}'  would  not,  if 
incorrect,  vitiate  the  indictment;  as  ihe  grand  jury  were  at  liberty  to 
find  a  bill  upon  their  own  knowledge  nierelj%  and  were  anciently  in  the 
habit  of  doing  so.  And  Wightman,  .J.,  added  that  the  same  point  had 
arisen  lately  on  the  Northern  Circuit  before  Lord  Denman  and  himself, 
and  thej%  alter  considering  the  subject,  were  of  the  same  opinion  as  had 
been  expressed  to-day."  Keg.  v.  Russell,  1  Car.  &  M.  247.  The  grand 
jury  can  hardly  be  said  to  have  any  ''  knowledge  "'  in  such  a  case. 
See  ante,  §  614. 

In  a  note  to  Hawkins"  Pleas  of  the  Crown  (Book  II..  c.  55,  §  145),  it  is 
said  to  have  been  the  opinion  of  manj'  of  the  judges,  in  the  case  of  Dr. 
Dodd,  that  if  a  grand  jurj^  should  find  a  bill  upon  evidence  palpablj"  im- 
proper, and  the  accused  be  afterwards  convicted  on  it  by  lawful  evi- 
dence before  a  petit  jury,  the  validity  of  such  a  conviction  could  not  be 
impeached.  But  in  the  report  of  this  case  in  Leach's  Crown  Cases  (p. 
184,  case  85),  the  opinion  of  Mr.  Justice  Aston,  delivei'ed  for  the  twelve 
judges,  simpl}'  decides  that  an  accomplice  is  a  competent  witness  against 
one  particeps  crirainLs,  and  the  validity  of  an  indictment  found  upon  his 
testimony  is  not  affected  by  the  circumstance  tliat  he  was  illcgallj^  taken 
from  Newgate  to  deliver  his  testimony  liefore  the  grand  jury,  .'•^ee,  in 
this  connection,  State  v.  Wolcott,  21  Conn.  272;  United  States  v.  Brown, 
1  Sawy.  531. 


§643]  HEARING  THE  EVIDENCE..  695 

the  court  should  interfere  and  quash  the  indictment."^ 
The  distinction  here  taken  would  seem  to  be  proper  and 
easy  of  application.  Nevertheless,  it  is  not  regarded  by  all 
courts.  On  the  contrary,  a  very  respectaljle  array  of  au- 
thority may  be  cited  to  support  the  proposition  that  the 
court  will,  under  no  circumstances,  institute  an  inquiry  as  to 
the  character  of  the  evidence  upon  which  an  indictment  was 
found.  When  the  indictment  has  been  duly  returned,  and 
the  finding  indorsed  as  required  by  law,  these  facts  are 
considered  as  conclusive  of  the  regularity  of  the  finding.^ 

§  643.  Accused  may  Voluntarily  testify. —  If  the  defend- 
ant voluntarily  appears  before  the  grand  jury,  and  there 
gives  evidence  when  his  case  is  under  examination,  this  con- 
stitutes no  ground  for  setting  aside  an  indictment  subse- 
quently found  against  him;^  aliter,  of  course,  where  the 
defendant  is  compelled  to  appear  and  give  evidence  in  the 
proceedings  against  himself.*  But  at  this  point  a  distinc- 
tion must  be  taken.  Suppose  the  grand  jury,  by  virtue  of 
their  inquisitorial  powers,  are  engaged  in  searching  out 
crime.  Clearly  they  may  summon  any  person,  whom  they 
have  good  reason  to  believe  to  be  cognizant  of  facts  which 
will  lead  to  the  detection  of  crime.  In  the  end  they  may 
see  fit  to  find  indictments  against  some  of  the  persons  w^hom 
they  have  compelled  to  appear  before  them  as  witnesses. 
If  an}^  of  these  indicted  persons  has  seen  fit  to  give  answers 
implicating  himself,  the  validity  of  the  indictment  found 
upon  this  testimony  cannot  be  impeached  by  the  circum- 
stance that  he  has  been  compelled  to  appear  before  the 
grand  jury.     Otherwise,  the  inquisitorial  powers  possessed 

1  United  States  v.  Farrington  (U.  S.  Dist.  Ct.  N.  D.  New  York,  1881;, 
*2  Grim.  L.  Mag.  525,  531;  s.  c,  5  Fed.  Kep.  343. 

2  United  States  v.  Keed,  2  Blatchf.  435,  466;  United  States  v.  Brown,  1 
Sawy.  531;  People  v.  Hulbut,  4  Den.  133,  135;  State  v.  Boyd,  2  Hill 
/S.  C.)  288;  State  v.  Fowler,  52  Iowa,  103;  Stewart  v.  State,  24  Ind. 
142;  Creek  v.  State.  24  lud.  151;  State  v.  Fassett,  16  Conn.  467;  Low's 
>Case,  4  Me.  43'J,  446. 

3  People  V.  Iving,  28  Cal.  265 ;  United  States  v.  Brown,  1  Sawy.  531, 537. 
*  State  V.  Froiseth,  16  Minn.  i>96. 


696         PROCEEDINGS  OF  THE  GRAND  JURY.   [CH.  XXXI. 

l)y  thia  body  in  many  States '  would  be  greatly  impaired. 
In  many  cases  the  iiuiuiry  would  be  stopped  at  the  very 
threshold. - 

§  644.  Testimony  of  Grand  Jurors. —  In  a  former  chap- 
ter we  necessarily  considered  this  point,  while  discussing  the 
power  of  the  grand  jury  to  originate  indictments.^  In  this 
connection,  however,  it  is  proper  to  remark,  that  when  a 
charge  is  made  by  a  grahd  juror,  there  is  no  necessity  that 
he  should  take  an  oath  as  a  witness.  He  is  already  sworn 
to  make  true  presentment,  and  from  the  earliest  times  it 
has  been  the  conceded  power  and  duty  of  the  grand  jury  to 
make  presentment  of  all  offences  resting  in  the  knowledge 
of  the  body,  or  any  one  of  them.*  An  early  decision  of 
the  Supreme  Court  of  North  Carolina  ^  has  caused  some 
confusion  on  this  point,  but  that  decision  was  based  upon  a 
statute,  and  moreover  it  is  believed  to  be  unsound."  How- 
ever, statutes  are  found  in  some  States  requiring  the  grand 
juror  in  such  a  case  to  be  sworn  and  examined  as  a  witness,^ 
and  where  the  juror  is  not  sworn  as  a  witness,  the  present- 
ment must  Ije  upon  the  information  of  at  least  two  of  the 
grand  jury.'* 

§  645  Qiiantuiu  of  Evidence  Necessary. —  The  authori- 
ties differ  as  to  the  degree  of  certainty  to  Avhich  the  guilt 
of  the  accused  must  be  proved,  in  order  to  justify  the 
jurors  in  returning  the  indictment  as  true.  Lord  Hale 
states  that  "  in  case  there  be  probable  evidence,  they  ought 
to  find  the  bill,  })ecause  it  is  but  an  accusation,  and  the 
party  is  to  be  put  upon  his  trial  afterwards."  ''     Mr.  Justice 

1  Ante,  §  615. 

2  United  States  v.  Brown,  1  Sawj'.  531. 

3  Ante,  §  614. 

*  Add.  (Pa.)  Rep.  App-  38. 

5  State  V.  Cain,  1  Hawks,  352. 

6  Ante,  §  625. 

7  Gen.  Laws  Ore«?.1872,  p.  347,  §  57;  R.  S.  111.  ISSO,  §  4277. 

8R.  S.  111.  1880,  §  4277;  Code  Va.  1873,  p.   1237,  §  9;  Rev.  Stats.  W. 
Va.  1879,  ch.  53,  §  8. 
9  2  Hale  P.  C.  157. 


§   645.]  HEARING  THE  EVIDENCE.  697 

Addison  states  that  "  most  of  the  reasons,  on  which  it  is 
contended  that  a  grand  jury  should  never  assent  to  an 
accusation,  but  on  absolute  evidence  of  its  truth,  have  led 
also  to  a  conclusion,  that  the  grand  jury  ought  to  hear  Avit- 
nesses  in  defence  of  the  accused  person."^  But  it  is  not 
plain  how  this  can  be.  The  very  fact  that  the  proceedings 
before  the  grand  jury  are  wholly  ex  parte  would  seem  ta 
suggest  the  reasonableness  of  the  requirement  that  this 
body  should  be  f  ull}^  convinced  of  the  guilt  of  an  accused 
person  before  preferring  an  indictment  against  him.  Ac- 
cording to  Blackstone,  "  a  grand  jur}^  ought  to  be 
thoroughly  persuaded  of  the  truth  of  an  indictment,  so  far 
as  their  evidence  goes  ;  and  not  to  rest  satisfied  merely  with 
remote  probabilities  :  a  doctrine  that  might  be  applied  to 
very  oppressive  purposes."  ^  The  force  of  this  last  obser- 
vation is  strikingly  illustrated  by  the  proceedings  in  the 
famous  case  of  the  Earl  of  Shaftesbury.^  This  nobleman 
had  been  arrested  on  a  charge  of  high  treason,  which,  how- 
ever, was  a  mere  pretence,  as  there  was  no  legal  evidence 
to  implicate  him,  and  the  bill  went  before  the  grand  jury. 
*'  The  intention  "  says  Mr.  Forsyth,  "  was  to  remove  it, 
when  found,  as  the  parliament  was  not  sitting,  to  the  court 
of  the  High  Steward,  where  Lord  Shaftesbury  would  have 
been  tried  by  peers  selected  by  the  King,  and  his  conviction 
and  sentence  would  have  been  inevitable."  *  Upon  this  oc- 
casion Lord  Chief  Justice  Pemberton  again  and  again 
pressed  the  grand  jury  with  their  obligation  to  find  the  bill 
true,  if  a  proba])le  cause  existed  for  calling  the  accused  ta 
account.  The  disgraceful  zeal  of  the  coui't  in  behalf  of  the 
crown  detracts  much  from  the  value  of  this  case  as  an 
authority.  Sir  John  Hawles,^  in  his  remarks  upon  Shaftes- 
bury's  case,  strongly    argues    against  the  rule    under  dis- 

1  Addison  (Pa.)  Eep.  App.  40. 

2  4B1.  Com.  303. 

3  8  How.  .St.  Tr.  759. 

*  Forsyth,  Trial  by  Jury,  224. 

*  Solicitor  General  in  the  reiojn  of  William  III. 


698  PROCEEDINGS  OF  THE  GRAM)  JURY.        [Cll.   XXXI. 

cussion.  "  I  t:ikc  the  reason  of  :i  lii-und  jury  to  be  this," 
said  he,  "  that  no  man  for  a  capital  matter  shall  ever  be 
questioned  by  the  King,  unless  a  grand  jury  take  it  on  their 
oath  that  they  believe  the  mutter  of  the  accusation  true."  ^ 

These  enlightened  views  have  found  support  in  hitor 
authority,-  and  the  rule  generally  adopted  is  doubtless  as 
stated  by  "Mr.  Justice  Field  in  a  charge  to  a  grand  juiy  : 
"To  justify  the  finding  of  an  indictment"  said  he,  "you 
must  be  convinced  so  far  as  the  evidence  before  you  goes, 
that  the  accused  is  guilty,  in  other  words,  you  ought  not  to 
find  an  indictment,  unless,  in  your  judgment,  the  evidence 
before  you,  unexplained  and  uncontradicted,  would  warrant 
a  conviction  by  a  petit  juiy."^  This  rule  is  enforced  by 
statute  in  many  States. "* 

§  64G.  Jurors  judges  of  the  Credibility  of  Witnesses. — 
No  doubt  exists  at  the  present  day,  that  is  not  only  the  privi- 
lege, but  the  duty  of  the  grand  jury,  under  their  oath  to 
"diligentl}^  inquire,"  to  judge  of  the  credibility  of  the  wit- 
nesses introduced  by  the  prosecution.^  However,  as  a 
matter  of  historical  interest,  note  the  ruling  of  the  court 
upon  the  proceedings  against  the  Earl  of  Shaftesbuiy.  The 
grand  jurors,  suspecting  the  character  of  certain  low  knaves 
introduced  as  witnesses,  stated  to  the  court  their  desire  to 


1  8  How.  St.  Tr.  838. 

2  1  ChiUv  Cr.  L.  318. 

^  2  Sawy.  670.  See  also  State  v.  Fasset,  16  Uonn.  457,  473;  People  v. 
Hyler,  2  Park.  Cr.  R.  570;  State  v.  Atklison,  2  So.  Car.  365;  Add.  (Pa.) 
Hep.  App.  43.  Contra,  Respublica  v.  Shaffer,  1  Dall.  23G.  The  duty  of 
the  grand  jurj'.  as  stated  by  the  Tennessee  court,  ''is  simply  to  inquire 
whether  or  not  a  prima  facie  case  is  made  out  as  chai-ged  in  the  in- 
dictment.''    State  V.  Cowan.  1  Head,  280. 

^  Xew  York  Code  Crim.  Proc.  1881,  §  258;  Penal  (Jode  Cal..  §  021 ;  Ark. 
JJig.  Stat.  1874,  §  1760;  Miller's  R.  C.  Iowa,  1880,  §  4283;  Bullitfs  Ky. 
Cr.  Code,  §  111;  2  Stat,  at  Large,  Minn.  1873,  p.  1036,  §  110;  Conip.  I.. 
Nev.  1873,  §  1833;  Gen.  Laws  Xew  Mexico,  1880,  p.  370,  §  8;  Gen.  Laws 
Oreg.  1872,  p.  347,  §  50;  Laws  Utah,  1878,  §  136.  See  People  v.  Tinder, 
19  Cal.  530. 

*  Respublica  v.  Shaffer.  1  Dall.  237;  Add.  (Pa.)  Rep.  App.  42,43; 
Tucker's  Case,  8  Mass.  286;  1  Burr's  trial.  202. 


§    648.]  HEARING  THE  EVIDENCE.  699 

know  whether  any  of  the  witnesses  stood  indicted  ;  where- 
upon, Pemberton,  the  Loixl  Chief  Justice,  eager  that 
the  grand  jury  should  find  a  true  bill,  impatiently  ex- 
claimed: "Look  you  gentlemen,  don't  talk  of  this,  but 
consider  with  yourselves.  An  examination  of  proofs  con- 
cerning the  credibility  of  the  witnesses,  is  not  properly  he- 
fore  you  at  this  time."  ^ 

§  647.  Power  to  Coerce  Witnesses. — Witnesses  before 
the  grand  jurv  are  subject  to  the  lawful  authority  and  con- 
trol of  the  court,  in  the  same  manner  as  are  the  witnesses 
before  the  trial  jury.-  "In  contemplation  of  law,"  said 
Parsons,  J.,  "a  grand  jury  are  supposed  to  be  personally 
present  in  court."  ^  In  view  of  the  fact  that  the  proceed- 
ings of  the  grand  jury  are  conducted  apart  from  the  court, 
it  is  plain  that  when  a  witness,  who  has  been  duly  sum- 
moned before  this  body,  refuses  to  be  sworn  or  to  answer 
questions,  or  is  otherwise  contumacious,  the  grand  jur}^  may 
require  their  officer  to  take  him  into  custody,  and  conduct 
him  before  the  court  to  obtain  the  advice  and  decision  of 
the  court  under  the  circumstances,  as  well  as  its  compulsory 
power  to  enforce  obedience.'*  Such  a  witness  may  be  fined 
by  the' court,  or  imprisoned  for  contempt.^  The  decision  of 
the  court  upon  such  a  matter  is  not  open  to  review.'' 

§  648.  Sanity  of  Accused  need  not  be  Shown. —  It  is 
unnecessary  to  summon  witnesses  on  the  part  of  the  prose- 
cution to  prove  the  sanity  of  the  accused.  Every  man  is 
prima  facie  responsible  for  his  actions,  and  for  the  natural 
and  probable  consequences  of  them.  The  grand  jury,  it 
must  be  remembered,  is  simply  an  accusing  body,  and  has 
nothing  to  do  with  the  defendant's  witnesses,  or  his  matter 


J  8  How.  St.  Tr.  802. 

2  See  ante,  §  624. 

3  Com.  V.  Crans,  3  Peuii.  L.  J.  442,  453;  s.  c.,2  Clark  (Peiiii.),  172,184. 

4  Heard  v.  Pierce,  8  Ciish.  338. 

«  1  Chitty  Cr.  L.  321 ;  Eex  v.  Preston,  1  Salk.  278;  Lockwood  v.  State, 
1  Ind.  161;  Ward  v.  State,  2  Mo.  120. 
^  Lockwood  V.  State,  supra. 


700  PROCEEDINGS  OF  THE  GRAND  JURY.        [cil.  XXXI. 

of  defense.^  Indeed,  under  the  Enulish  practice,  the  grand 
jury  have  no  authority  to  ignore  a  hill  for  murder,  on  the 
ground  of  insanity,  although  it  clearly  appears  from  the 
testimony  of  the  witnesses  introduced  by  the  prosecution, 
that  the  accused  was  in  fact  insane.  If  they  believe  that 
the  accused  has  done  the  killing,  and  that  the  act,  if  done 
by  a  person  of  sound  mind,  would  have  been  murder,  they 
are  bound  to  lind  the  bill  true.'^ 

§  649.  All  Iiidietiiu'iit  substituted  without  Evidence. — 
A  grand  jur}^  without  examining  witnesses  anew,  may  find 
an  indictment  as  a  substitute  for  another  indictment,  found 
by  them  upon  an  investigation  of  the  facts  at  a  previous 
term.^  But  a  grand  jury  which  has  never  investigated  the 
merits  of  a  charge  cannot  return  an  indictment  founded 
upon  it.  They  are  bound  to  make  diligent  inquiry,  accord- 
ing to  the  terms  of  their  oath.  The  mere  fact  that  a 
former  grand  jury  agreed  upon  the  same  or  a  similar  indict- 
ment, Avhich  they  failed  to  return  into  court,  does  not 
warrant  a  subsequent  grand  jury  in  returning  the  indictment 
as  their  own  finding.''  So,  a  finding  by  a  grand  jury  which 
has  been  quashed,  or  on  which  a  nolle  2>''os.  has  been  en- 
tered, is  not  such  "legal  documentary  evidence"  as  Avill 
authorize  the  finding  of  another  indictment  by  a  succeeding 
grand  jury.'^ 


ARTICLE  IV, 


THE    FINDIXG. 
SECTION. 

653.  Meaning  of  "  Found.*' 

654.  Number  to  concur  in  Finding. 

655.  Right  to  fuid  a  Tart  of  the  Bill  true.    ' 

1  United  States  v.  Lawrence.  4  Crauch  C.  C.  51 1. 

«  Reg.  V.  Hodges.  8  Car.  &  P.  195. 

3  Com.  V.  Woods,  10  Gray.  477;  Creek  v.  State,  21  lud.  151.  150. 

*  State  V.  Grady,  MS.  St.  Loui.s  Court  of  Appeals.  .June  6.  1882. 

5  Sparrenberger  v.  State,  53  Ala.  481. 


§    654.]  THE  FINDING.  701 

656.  Findino-  must  be  Absolute  and  without  Ambiguity. 

657.  Keturu  of  Finding  into  Court. 

658.  Amendment  of  Indictment. 

659.  Publication  of  Finding. 

660.  Filing  the  Indictment. 

661.  Effect  of  finding  the  Bill  not  true. 

§  653,  Meaning- of  "Found." — An  indictment  is  said  to 
have  been  found,  when  concurred  in  by  the  constitutional 
number  of  grand  jurors.  For  this  reason,  a  statute  pro- 
viding that  an  indictment  shall  be  set  aside  upon  motion, 
^' where  it  is  not  found,  indorsed  and  presented  as  pre- 
scribed in  this  code,"^  o-ives  no  ri^-ht  to  a  defendant  to  com- 
plain  that  the  grand  jury  were  drawn  from  a  list  irregularly 
selected  by  the  county  authorities,  or  improperly  summoned 
and  impannelled.^ 

§  654.  Number  to  Concur  in  Finding-. — In  a  former 
chapter  it  was  incidentally  shown  that  at  common  law,  what- 
ever the  numlier  of  jurors  upon  the  panel,  the  concurrence  of 
twelve  was  sufEcient  to  find  an  indictment,^  Unless  other- 
wise provided  by  law,  this  is  the  rule  to-day,*  and  the 
statutes  of  many  States  expressly  so  provide.^  In  a  few 
States  the  concurrence  of  a  less  number  is  sufficient.  Thus, 
in  West  Virginia  the  number  is  fixed  at  ten  ;^  in  Missouri, 
Texas   and  Colorado,   nine  ;  ^  in  Indiana  and  Oregon,  five. ^ 

iCal.  Penal  Code,  §  995. 

2  People  V.  Southwell,  4G  Cal.  Ul ;  People  v.  Colby,  54  Cal.  37.  See 
also  State  v.  Logan,  1  Nev.  509,  515;  State  v.  McCartey,  17  Minn.  76. 

3  Ante,  §  583.     See  also  1  Chitty  Cr.  L.  322. 
*  Com.  V.  S  lyers.  8  Leigh,  722. 

5  Code  Ala.  1876.  §  4777;  Cal.  Penal  Code,  §§  931,  940;  Ark.  Dig.  Stat. 
1874,  §  1776;  G.  S.  Conn.  1875,  p.  536.  §  3;  E.  S  III.  LSSO,  p.  412,  §  408; 
Miller's  R.  C.  Iowa,  1880,  §  4-291 ;  Cump.  L.  Kan.  187:).  §  4587;  Con)p.  L. 
Mich.  1871,  §  7895;  2  Stat,  at  Large,  Minn.  1873,  p.  1037,  §  118;  Comp, 
L.  Neb.  1881.  p.  7-27,  §  408;  Comp.  L.  Nev.  1873,  §  1841;  Id.,  §  1850; 
New  York  Code  Crim.  Proc.  1881,  §  268;  R.  S.  Ohio,  1880,  §  7-206;  G.  S. 
Vt.  1862,  p.  332,  §  15;  Code  Va.  1873,  p.  1237,  §  9;  R.  S.  Wis.  1878, 
§  2952.  See  also  Rev.  Stat.  U,  S.  §  102 1 ;  Comp.  L.  Ariz,,  §§  610,  6-20; 
Gen.  Laws  New  Mexico,  1880.  p.  371,  §  16;  Laws  Utah,  1878,  §  143. 

«  Rev.  Stat.  W.  Va.  1879,  ch.  53,  §  8, 

7R.  S.  Mo.  1879,  §  1795;  Tex.  Code  Crim  Proc.  1879,  Art.  411;  Geu. 
Laws  Coh>.  1877,  §  1477. 

8  2  Stat.  lud.  1876,  p,  417,  note,  §  3;  Gen.  Laws.  Oreg.  1872,  p.  348, 


702  I'ROCEEDINGS  OF  THE  GRAND  JUUY.        [CH.   XXXI. 

These  chting'es  are  warriinted  by  the  terms  of  the  constitu- 
tions of  Missouri,  Coh)rado  and  Indiana.^  In  the  other 
States  mentioned,  no  such  constitutional  authority  appears. 
Whether  it  is  necessary,  presents  an  interesting  question, 
which  seems  never  to  have  been  satisfaetoi-ily  determined.'^ 

§  655.  Kight  to  Find  a  Part  of  the  Bill  True. — The 
determination  of  this  (juestion  can  l)e  of  interest  only  in 
those  jurisdictions  which  follow  the  English  practice  of 
sending  bills  of  indictment  before  the  grand  jur}',  as  the 
basis  of  their  investigations.  Generally,  this  is  not  the  prac- 
tice here.  As  observed  by  Mr.  Justice  Field  in  a  charge 
to  a  grand  jury,  "the  government  now  seldom  delivers  bills 
of  indictment  to  the  grand  jury  in  advance  of  their  action, 
but  generally  awaits  their  judgment  upon  the  matters  laid 
before  them."  ^  Bills  of  indictment  are  accordingly  drawn 
up  by  the  attorney  of  the  government  under  their  direction, 
and  in  conformity  to  their  decision."* 

However,  as  the  English  practice  doubtless  remains  in 
some  States,  a  statement  of  the  law  upon  this  point  is  neces- 
sary. According  to  Mr.  Chitty,  it  is  as  follows:  "The 
jury  cannot  find  one  part  of  the  same  charge  to  be  true  and 
another  false,  but  they  must  either  maintain  or  reject  the 
whole;  and,  therefore,  if  they  indorse  a  bill  of  indictment 
for  murder,  '  hilla  vera  se  defendendo,^  or  '  billa  vera  for 
manslaughter,  and  not  for  murder,'  the  whole  will  be  in- 
valid, and  may  be  quashed  on  motion.^    It  has,  indeed,  been 

§  60.  So  in  Virginia,  wlien  tiie  grand  jury  is  summoned  for  a  special  term 
of  court.  Code  Va.  1873,  p.  1237,  §  9.  As  to  tlie  number  of  the  grand 
jury  in  these  States,  see  ante^  §  583,  subsec.  2. 

1  Const.  Mo.  1875,  Art.  II,  §  28;  Const.  Colo.  1876,  Art.  II,  §23;  Const. 
Ind.  1851,  Art.  VII,  §  17. 

2  An  act  of  the  legislature  of  Georgia  establisliing  a  municipal  court 
for  the  trial  of  misdemeanors,  and  authorizing  an  indictment  in  such  cases, 
with  the  concurrence  of  nine  of  the  twelve  grand  jurors,  was  held  to  be 
constitutional.     Thurman  v.  State,  25  Ga.  220. 

3  2  Sawyer,  667,  678. 

*  Com.  V.  Smyth,  11  Cush.  473,  476;  Webster's  Case,  5  Me.  432. 

■•  Citing  2  Kol.  Rep.  52;  3  Bulst.  206;  1  Kol.  Rep.  407,  408;  1  Sid.  230; 
Cowp.  325 ;  2  Hale  T.  C.  158 ;  2  Hawk.  P.  C.  c.  25,  §  2 ;  Com.  Dig.  Indict- 
ment, A;  Bac.  Abr.  Indictment,  I);  Cro.  C.  C.  32;  Burn's  J.,  Indict- 
ment, VII. 


§    656.]  THE  FINDING.  703 

said,  thut  if  a  grand  jury  find  a  bill  for  manslaughter  on  an 
indictment  for  murder,  the  words  'of  malice  aforethought' 
and  '  did  murder  '  may  be  struck  out,  and  the  indictment 
amended  by  reducing  it  to  a  mere  accusation  of  the  inferior 
offence,  in  the  presence  of  the  jury.^  This,  however,  seems 
questionable,  and  it  is  agreed  that  it  is  the  safer  course  to 
prefer  a  fresh  indictment  for  manslaughter  :  and  so,  where 
the  bill  is  originally -for  burglary,  to  prefer  an  indictment 
for  theft,  which  is,  in  substance,  included.^  This  rule,  how- 
ever, docs  not  extend  to  the  finding  of  different  counts,  for 
as  each  count  contains  a  distinct  charge,  the  jury  maj'^  return 
a  true  bill  upon  one  of  them  only,  and  the  finding  will  be  as 
valid  as  if  no  other  had  ever  been  inserted.^  And  an  indict- 
ment against  several  may  be  found  against  one  or  more,  and 
rejected  as  to  the  rest."*  The  rule,  as  thus  stated,  is  not 
varied  in  its  application  in  this  country.^ 

§  656.  Finding  must  be  Absolute  and  without  Am- 
bigiiity.  —  The  rule  is  imperative  that  the  finding  must  be 
certain  and  unconditional.^  Some  examples  of  irregular 
findings  found  in  the  early  reports  will  illustrate  this  rule. 
Of  this  character  is  the  finding  "  si  do7nus  non  fuit  in  pos- 
sessio7ie  dominoe,  regi^im,  tunc  hilla  veixi.^'  And,  in  a  case  of 
libel,  "  hilla  vera,  but  whether  ista  verba  prolata  fuerunty 
malitiose,  seditiose,  vel  e  contra,  ignoramus .^ ^  "^  In  a  case 
where  the  grand  jury  returned  a  bill  of  indictment  which 
contained  three  counts,  with  an  indorsement,  "  A  true  bill 


1  Citing  2  Hale  P.  C.  162;  Bac.  Abr.  Indictment,  D. 

2  Citing  2  Hale  P.  C.  162;  Bac.  Abr.  Indictment,  D. 

3  Citing  1  Cowp.  325;  2  Hawk.  P.  C.  c.  25,  §  2;  Com.  Dig.  Indictment. 
A,  note;  Bac.  Abr.  Indictment,  D;  Cro.  C.  C.  32;  Burn's  J..  Indictment 
VII,  and  Jurors,  VI. 

4 1  Chitty  Cr.  L.  322. 

5  Cherry  v.  State,  6  Fla.  679,  686;  State  v.  Cowan,  1  Head,  280;  State 
V.  Williite,  11  Humph.  602;  State  v.  Wilburne,  2  Brev.  296;  State  v. 
Creighton,  1  Nott.  &  Mc.  256. 

"  Note  the  obvious  typographical  error  in  the  4th  Am.  ed.  of  Chitty 
on  Criminal  Law,  at  p.  323,  where  it  is  said  that  the  finding  must  be 
"  conditional." 

7  2  Hawk.  P.  C,  c.  25,  §  2;  1  Chitty  Cr.  L.  323. 


704  PROCEEDINGS  OF  THE  GRAND  JURY.   [CH.  XXXl. 

on  both  counts,"  and  the  defendant  was  tried  and  con- 
victed, judgment  was  arrested.^ 

§  G57.  Return  <»f  Finding  into  Court. —  When  the 
grand  j^ut  have  concluded  their  investigations,  and  have 
duly  indorsed  each  bill  laid  before  them,  so  as  to  indicate 
the  result,  they  return  in  a  body  into  court,  and,  through 
their  foreman,  deliver  the  same  into  its  custody.^  It  is  the 
general  and  probably  the  universal  practice  to  deliver  all 
indictments  to  the  court  in  the  presence  of  the  grand  jury.^ 
The  procedure  at  this  point  is  usually  carefully  laid  down 
by  statutory  provisions  in  each  State. ^ 

§  658,  Amendment  of  Indictment. —  Under  the  English 
practice,  when  the  grand  jury  have  returned  the  indictments 
into  court,  the  clerk  of  the  peace  or  clerk  of  the  assize  asks 
them  if  they  agree  that  the  court  shall  amend  matters  of 
form,  altering  no  matter  of  substance  ;  to  which,  as  a  mat- 
ter of  course,  they  signify  their  assent.^  There  is  no  doubt 
that,  with  leave  of  the  court,  an  indictment  maybe  amended 
by  the  grand  jury  at  any  time  before  the  prisoner  has 
pleaded,  and  before  they  are  discharged.** 

§  659.  Publication  of  Finding-. — It  is  not  necessary  that 
the  finding  of  a  grand  jury,  upon  a  bill  of  indictment  pre- 
sented by  them,  should  be  read  in  open  court.  The  hand- 
ing of  the  bill  to  the  clerk  in  open  court,  and  the  entry  of 
it  by  him  on  the  records,  is  a  sufficient  publication  of  the 
finding  of  the  body.^  And,  in  furtherance  of  the  secrecy 
enjoined  upon  the  grand  jury  and  officers  of  the  court  in 
respect  of  indictments  found,  it  is  held  that  an  indictment 
should  not  be   docketed,  nor  entered  upon  the  minutes  or 

'  Rex  V.  C;u-lil<;,  citediii  Reg.  v.  Cooke,  8  Car.  &  P.  582,  584. 
2 1  Chitty  Cr.  L.  324. 

3  State  V.  Squire,  10  N.  H.  5(50;  State  v.  Morrison,  30  La.  An.  817; 
Com.  V.  Cavvood,  2  Ya.  Cas.  527;  Harriman  \'.  State,  2  G.  Greene,  270, 
378. 

4  See  Fitzoox  v.  State,  52  Miss.  923;  Cachute  v.  State,  50  Miss,  165. 
« 1  Chitty  Cr.  L.  324. 

«  State  V.  Creiglit,  1  Brev.  1G9. 

^  United  States  v.  Butler,  1  Hug  lies,  457. 


§661.]  THE  FINDING.  705 

records  of  the  court,  unless  the  defendant  be  in  custody  or 
held  to  bail.^  Otherwise,  the  accused  would  be  apprized  of  the 
finding  of  the  indictment  before  the  officers  could  take  him, 
and  would,  by  this  means,  be  enabled  to  escape.  To  ob- 
viate this  difficulty,  and  at  the  same  time  to  comply  with 
the  requirement  of  the  law  that  the  return  of  the  indict- 
ment shall  appear  of  record,  the  clerk  should  note  the  fact 
of  such  return,  and  its  date,  upon  the  indictment.^  The 
clerk  may  also  make  a  record  entry  of  the  return  of  the 
indictment  into  court  by  the  grand  jury,  identifying  it  by 
its  number,  but  not  disclosing  the  name  of  the  accused.^ 

§  660.  Filing  Indictment.  —  A  statutory  requirement 
that  indictments,  after  presentation,  shall  thereupon  be 
filed  and  remain  as  public  records,  etc.,  does  not  render 
void  an  indictment  dul}'^  presented,  but  not  filed.  Explicit 
lano;uao;e  in  the  statute  that  the  indictment  shall  be  void 
unless  filed,  is  necessary  that  the  provision  may  have  this 
effect.* 

§  661.  Effect  of  Finding  the  Bill  not  trne. —  The  refusal 
of  the  grand  jury  to  find  an  indictment  is  never  regarded  as 
an  acquittal  of  the  offence.  It  is  conclusive  of  nothing 
more  than  that,  at  such  time,  the  grand  jury  were  not  pos- 
sessed of  sufficient  evidence  to  warrant  them  in  putting  the 
accused  to  answer;'^  therefore,  another  bill  may  be  sent  to 
another  grand  jury  for  the  same  offence,  which,  being  found 
true,  the  defendant  may   be  put  to  answer.^     A  discharge 

i  State  V.  Corson,  12  Mo.  454. 

-  Wrocklege  V.  State,  1  Iowa,  169;  Herring  v.  State,  1  Iowa,  205. 

^  Willey  V.  State,  46  Ind.  363;  Green  v.  State,  19  Ark.  178;  Shropshire 
V.  State,  12  Ark.  190;  Cachute  v.  ytate,  50  Miss.  165;  Speed  v.  State,  52 
Miss.  176.  In  the  last  case,  it  would  seem  that  the  court  held,  with 
unnecessary  strictness,  that  where  the  record  states  that  the  grand  jury 
returned  into  court  •'  numbers  779,  780,"  etc.,  giving  a  considerable  list 
of  numbers  seriatim,  it  will  not  be  presumed  that  these  numbers  refer  to 
indictments;  that  the  record  must  expressly  state  this  fact. 

^  Dawson  v.  People,  25  N.  Y.  399,  405. 

5  Add.  (Pa.)  Rep.  App.  38;  Com.  v.  Miller,  2  Ashm.  61;  Knott  v.  Sar- 
gent, 125  Mass.  95;  State  v.  Branch.  68  IST.  C.  186;  Rowand  v.  Com.,  82 
Pa.  St.  405;  1  Chitty  Cr.  L.  325.     Seeposi,  §  664. 

^  Cases  cited  supra.  In  a  recent  Pennsylvania  case  this  rule  was  re- 
luctantly applied.     Rowand  v.  Com.,  82  Pa.  St.  405,  407. 

(45) 


706         PROCEEDINGS  OF  THE  GRAND  JURY.   [CH.  XXXf. 

upon  a  former  indictment,  upon  payment  of  costs,  in  conse- 
quence of  the  refusal  of  the  prosecutor  further  to  prosecute, 
is  no  bar  to  a  subsequent  indictment.' 

There  is  a  rule  of  English  practice,  founded  upon  reasons 
of  convenience,  that  where  the  grand  jury  have  ignored  a 
bill,  the  court  will  not  permit  a  second  bill  of  a  like  nature 
to  be  presented  by  them  at  the  same  session.^  If  such  a  bill 
is  presented  and  found  true,  the  indictment  will  be  set 
aside. ^  But  this  practice  seems  not  to  have  obtained  recog- 
nition in  this  country.'*  "  We  can  see  no  objection  to  the 
practice,"  said  Pearson,  C.  J.,  "that,  after  an  indictment 
has  been  returned  '  not  a  true  bill,'  the  State's  solicitor, 
upon  a  suggestion  to  the  court  that  he  has  procured  further 
evidence,  may  be  allowed  to  send  another  bill  to  the  same 
grand  jury,  charging  the  same  offence."  ^ 


ARTICLE  V. 


indorsement   of  finding. 

SECTION. 

664.  At  Common  Law. 

665.  The  Modern  English  Practice. 

666.  Effect  of  Certificate. 

667-  How  in  the  United  States. 

668.  Different  Forms  of  Certificate. 

669.  Official  Signature  of  Foreman. 

670.  Full  Name  of  Foreman  unnecessary. 

671.  Attestation  by  the  Foreman  superfluous. 

672.  And  so  is  the  Certificate  of  Finding. 

673.  Contrary  Decisions. 

674.  Certificate  of  Finding  and  Attestation  by  Foreman  superfluous. 

675.  Certificate  and  Attestation  of  Foreman  required  by  Statute. 

676.  Whether  these  Statutes  are  Mandatory. 

i  State  V.  Blackwell,  9  Ala.  79;  Com.  v.  Miller,  2  Ashm.  61. 

2  Reg.  V.  Humphreys,  Car.  &M.  601 ;  Reg.  v.  Austin,  4  Cox  C.  C.  385. 

'  Reg.  V.  Austin,  supra. 

*  See  Knott  v.  Sargent,  125  Mass.  95,  98. 

»  State  V.  Branch,  68  N.  C.  186. 


§    667.]  INDORSEMENT  OF  FINDING.  707 

§  664.  At  Comiuon  Law. —  "The  mode  in  which  the 
grand  jury  formerly  returned  the  result  of  their  inquiries 
to  the  court,"  says  Mr.  Chitty,  "  was  by  indorsing  on  the 
back  of  the  bill,  if  thrown  out,  '  ignora7nus,'  or  '  we  know 
nothing  of  it,'  intimating  that  though  the  accusation  might 
possibly  be  true,  no  facts  had  appeared  in  evidence  to  war- 
rant that  conclusion  ;  and  if  found  '  biUa  vera,'  or,  if  there 
were  several  returned  at  the  same  time,  '  quod  separates  pre- 
sentes  sunt  billae  verae.''  "  ^ 

§  665.  The  Modern  English  Practice. —  "But  at  the 
present  day,"  he  continues,  "  the  indorsement  is  in  English 
absolutely  ;  if  found,  '  a  true  bill ; '  and  if  rejected,  '  not  a 
true  bill ; '  or  which  is  the  better  way,  '  not  found,'  in  which 
case  the  party  is  discharged  without  further  answer."  - 

§  666.  Effect  of  Certificate. —  According  to  the  same 
authority,  the  indorsement,  "a  true  bill"  made  upon  the 
bill,  becomes  part  of  the  indictment,  and  renders  it  a  com- 
plete accusation  against  the  defendant.^  This  certificate  is 
the  proper  evidence  that  the  indictment  was  found  by  twelve 
or  more  grand  jurors,  as  required  by  law.*  It  may,  how- 
ever, be  contradicted.* 

§  667.  How  in  the  United  States. —  The  rule  uniformly 
recognized  in  this  country  is  doubtless  the  same  as  prevail- 
ing under  the  modern  English  practice,  except  that  some 
courts  require  more,  namely,  the  addition  of  the  signature 
of  the  foreman  of  the  grand  jury  to  this  certificate,  while 
others  require  less,  in  holding  that  the  certificate  even  is 
not  a  part  of  the  indictment,  and  therefore  not  essential  to 
its  validity.  An  attempt  will  be  made  to  arrange  the  con- 
trary decisions  in  intelligible  order.'' 

^  1  Chitty  Cr.  L.  324,  citing  Cora.  Dig.  Indictment  A. 

2  Ihid.,  citing  4  Bl.  Com.  305. 

3  Ibid.^  citing  Yelv.  99;  Com.  Dig.  Indictment  A. 

«  Turns  v.  Com.,  6  Met.  224.  233;  Dutell  v.  State,  4  G.  Greene,  125. 

5  See  i^ost^  §  704. 

8  A  presentment,  unless  required  by  statute,  need  not  be  signed  by 
all  the  grand  jurors.  It  should  be  handed  to  the  court  by  the  fore- 
man in  the  presence  of  the  grand  jury,  and  when  entered  of  record, 
no  further  evidence  is  required  of  its  authenticity.  State  v.  Cox,  6 
Ired.  L.  440.     But  see  State  v.  Muzingo,  Meigs,  112. 


708  PROCEEDINGS  OF  THE  GRAND  JURY.    [CH.  XXXI. 

§  668.  Different  Forms  of  Certificate.  —  In  uii  early 
Tennessee  case  ^  the  court  considered  the  following  forms  of 
certificate  as  synonymous,  and  equally  good:  "This 
is  a  true  bill  of  indictment;"  "this  is  a  (rue  bill  ;"  "a 
true  bill  of  indictment ;"  "  a  true  bill  ;"  and  "  true  bill."^ 
The  latter,  it  will  be  observed,  is  a  literal  translation  of  the 
original  Latin,  '^  billa  vera."  In  the  same  case,  the  court 
was  not  prepared  to  say  that  the  single,  emi)hatic  word, 
"true,"  indorsed  upon  a  bill,  was  not  sufficient  to  indicate 
the  finding. 

§  669.  Official  Signature  of  Foreman.— It  is  not  clear 
that,  at  common  law,  it  was  necessary  that  the  certificate 
of  the  finding  should  be  signed  by  any  member  of  the  grand 
jury,  or  by  the  foreman  of  the  body.  It  would  rather  seem 
that  it  was  not.^  However,  where  it  is  the  recognized  prac- 
itice  for  the  foreman  to  attest  this  certificate,  he  should  do 
jso  by  writing  after  his  name  the  title  of  his  office  :  "  Fore- 
anan  of  the  Grand  Jury."     But  the  law  is  not  strict  in  this 

requirement.     Where     the    words,     "  A   true    bill.     

■,  Foreman    of   the   Jury,"   were    printed    upon    the 


back  of  an  indictment,  and  the  name  of  the  foreman  was 
mpp«nded  to  the  words  descriptive  of  his  office,  instead  of 
preceding  them,  this  was  held  to  be  no  cause  for  quashing 
the  indictment.^ 

The  official  character  of  the  signer  may  appear  from  other 
sources,  the  caption  of  the  indictment,  or  other  part  of  the 
record;  wherefore,  the  simple  designation  "foreman"  ap- 
pended to  the  name  of  the  person  signing  as  such,  has  been 
held  to  refer  to  the  record  as  verifying  the  legal  inference 
th:it  "  foreman"  means  foreman  of  the  grand  jury  ;^  and  so 

1  State  V.  Elkin.«.  Mcig?,  111. 

2  See  also  State  v.  Davidson,  ]2  Vt.  300;.  Hopkins  v.  Com.,.  50  Pa. 
St.  9. 

3  Ante,  §  6G4;  Com.  v.  Ripperdon,  Litt.  Sel.  Cas.  195;  Price  v.  Com., 
:21  Gratr.  846,  859. 

*  State  V.  Hogan,  31  Mo.  342.  See  also  Overfehiiier  v.  Com.,  2  B. 
-Mon.  344. 

*  United  States  v.  Plumer,  3  Cliff.  28;  Wall  v.  State,  23  Ind.  150;  State 
'.T.  Jolly,  7  Iowa,  15. 


§   670.]  INDORSEMENT  OF  FINDING.  709 

of  the  letters  "f.  j.  g."  following  the  signature.^  And,  on 
the  same  principle,  it  is  clear  that  the  simple  signature  of 
the  foreman  to  the  certificate,  bald  of  any  designation  of 
office,  will  be  sufficient.^  Where  the  name  of  the  foreman, 
as  appearing  of  record,  and  that  indorsed  upon  the  indict- 
ment, indicate  different  persons,  an  appellate  court,  not 
having  the  whole  record  before  it,  will  presume  that  the  first 
appointee  was  discharged  by  the  court,  and  that  the  person 
whose  name  appears  upon  the  indictment  was  appointed  in 
his  stead. ^  So,  it  is  no  objection  to  an  indictment  that  it  is 
indorsed  a  true  bill,  by  one  of  the  jury  as  "  special  foreman 
of  the  grand  jury,"  when  his  appointment  as  such  appears 
of  record.  The  necessity  and  regularity  of  this  appoint- 
ment will  be  presumed,  in  the  absence  of  proof  to  the  con- 
trary, although  the  record  fails  to  show  that  the  regular 
foreman  was  absent,  excused  or  discharged.^ 

§  670.  Full  Name  of  Foreman  Unnecessary. — The  fore- 
man sufficiently  complies  with  the  law  by  using  in  his  sig- 
nature the  initial  letters  only  of  his  christian  names. ^  As 
stated  by  Dewey,  J.,  "  the  practice  of  public  functionaries 
of  the  highest  grade,  in  putting  their  names  to  documents 
of  the  gravest  character,  might  be  cited  in  support  of  such 
form  of  signature."  ^  Where  the  foreman  was  unable  ta 
write  his  name,  his  mark  subscribed  to  the  certificate  was. 
held  to  be  sufficient.^ 


1  State  V.  Chandler,  2  Hawks,  439. 

'^  State  V.  Chandler,  2  Hawks,  439;  Com.  v.  Walters,  6  Dana,  290;  Com. 
V.  Betton,  5  Cush.  427;  State  v.  Brown,  31  Vt.  602;  Com.  v.  Read, 
Thach.  Cr.  C.  180;  Friar  v.  State.  3  How.  (Miss.)  422;  McGuffie  v.  State, 
17  Ga.  497;  HalPs  Case,  3  Gratt.  593. 

s  Mohler  v.  State,  24  111.  26.    See  also  Friar  v.  State,  3  How.  (Miss.)  422. 

<  State  V.  Collins,  6  Baxter  (Tenn.),  151. 

*Com.  V.  Hamilton,  15  Gray  480;  Easterling  v.  State,  35  Miss.  210; 
Minor  v.  State,  63  Ga.  319;  State  v.  Taggart,  38  Me.  298;  State  v.  Folke, 
2  La.  An.  744;  Studstill  v.  State,  7  Ga.  2;  Wassels  v.  State.  26  Ind.  30; 
State  V.  Collins,  3  Dev.  117,  121;  Anderson  v.  State,  20  Ind.  89;  State 
V.  Groome,  10  Iowa  308. 

^  Com.  V.  Hamilton,  supra. 
State  V.  Tinney,  26  La.  An.  460;  State  v.  Powell,  24  Tex.  135. 


710         PROCEEDINGS  OF  THE  GRAND  JURY.   [CH,  XXXI. 

§   671.    Attestation    by    the    Foreman    Superfluous. — 

And  finally,  it  has  been  held  that  where  the  bill  is  indorsed 
with  a  proper  certificate  of  the  finding,  it  is  not  essential 
that  the  subscription  of  the  foreman's  signature  should 
follow.^  The  finding  "  being  in  writing,  and  having  been 
publicly  announced  by  the  clerk,  as  is  invariably  the  case, 
in  the  presence  of  the  grand  jury,  is  a  sufficient  guard 
against  misconstruction  or  perversion  ;  and,  as  there  is  no 
positive  law  requiring  it,  it  is  not  essentially  necessary  to  its 
validity  that  it  should  be  signed  by  the  foreman."'-'  This 
brings  us  back  to  what  was  doubtless  the  common  law  prac- 
tice, and  under  the  strict  requirement  of  the  law,  that  the 
return  of  the  indictment  must  appear  of  record,'  it  is  con- 
ceived that  the  indorsement  of  the  c  n-tificate  "a  true  bill," 
is  all  that  is  essential  to  guarantee  the  genuineness  of  the 
indictment. 

Since  the  subscription  of  the  foreman's  name  is  not  essen- 
tial to  the  validity  of  the  endorsement,  no  advantage  can  be 
derived  by  the  accused  from  a  variance  between  the  spelling 
of  the  name  in  the  indorsement  and  that  appearing  upon  the 
record  of  his  appointment.*  For  the  same  reason,  where 
the  record  does  not  show  the  appointment  of  a  foreman,  but 
the  indictment  is  endorsed  a  true  bill  by  one  of  the  body, 
and  it  appears,  independently  of  this  endorsement,  that  it 
was  returned  by  the  authority  of  the  body,  the  finding  is  as 
satisfactorily  demonstrated,  as  by  the  simple  indorsement  of 
a  regularly  appointed  foreman.'^ 

1  State  V.  Creighton,  1  Nott.  &  McC.  256;  Com.  v.  Walters,  6JDana, 
290;    State  v.  Calhoon,  1  Dev.  &  B.  374;   State  v.  Cox,  6  Ired.  L.  440 
Com.  V.  Eipperdon,  Litt.  Sel.  Cas.  194 ;  Peter  v.  State,  3  How.  (Miss.)  433 
State  V.  Collins,  3  Dev.  117.  120;    Friar  v.  State,  3  How.  (Miss.)  422 
State  V.  Flores,  33  Tex.  444;  Finson  v.  State,  23  Tex.  579. 

'Johnson,  J.,  in  State  v.  Creighton,  supra. 

3  See  post,  §  G96. 

*  State  V.  Calhoon,  1  Dev.  &  B.  374;  State  v.  Kimbrough,  2  Dev.  431; 
State  V,  Stedman,  7  Port.  495. 

*  Friar  v.  State,  3  How.  (Miss.)  422.  The  Irish  practice  requires  the 
signatures  of  all  who  concur  in  the  finding,  to  be  indorsed  upon  the  in- 
dictment, when  the  grand  jury  make  a  return  in  the  absence  of  their 
foreman.    lie  Grand  Jury,  3  Craw.  &  Dix  C.  C.  395. 


^    672.]  INDORSEMENT  OF  FINDING.  711 

§  672.  And  so  is  tlie  Certificate  of  Finding. —  We  have 
previously  alluded  to  the  difference  between  the  English 
practice  and  that  uniformly  prevailing  in  this  country,  in 
the  method  of  preferring  charges  to  the  grand  jury,  as  fur- 
nishing a  substantial  reason  for  a  variance  of  certain  rules 
of  procedure  existing  at  common  law  and  still  retained 
under  the  English  system.^  It  is  well  to  bear  this  circum- 
stance in  mind,  since  it  is  the  key  to  much  which,  at  first 
blush,  is  startling  and  anomalous.  Because  of  this  dif- 
ference in  practice,  it  is  held  to  be  not  essential  to  the 
validity  of  an  indictment  that  it  should  bear  as  an  in- 
dorsement the  certificate,  "a  true  bill,"  or  any  words  of 
similar  import.'  "  In  England,"  said  Gilchrist,  J.,  "  an 
accusation  of  a  crime  is  preferred  to  the  grand  jury  by 
one  or  more  persons  in  the  name  of  the  King,  but  at  the  suit 
of  these  private  prosecutors.  Until  this  accusation  is  found 
by  the  grand  jury  to  be  true,  it  is  merely  a  bill,  and  is 
so  to  be  termed  in  pleading,  and  not  described  as  an  in- 
dictment. The  prosecutor  must  cause  the  bill  to  be 
properly  prepared  and  engrossed  upon  parchment.  After 
considering  the  bill  and  the  evidence  in  support  of  it,  if 
the  grand  jury  are  satisfied  of  the  truth  of  the  charge, 
they  endorse  upon  it,  '  a  true  bill.'  The  bill,  thus  in- 
dorsed, becomes  an  indictment,  and  a  complete  accusa- 
tion against  the  prisoner.  The  indictment  is  then  said  to 
be  found,  and  the  person  stands  indicted.''  *  *  *  'q^^ 
here  the  practice  is  essentially  different.  No  bill  is  drawn 
up  by  a  private  person,  in  the  first  instance,  and  laid  before 
the  grand  jury  with  evidence  to  support  it.  Witnesses 
are  first  examined  before  the  grand  jury,  who  then  de- 
termine whether  the  evidence  be  suflicient  to  authorize 
them  to  prefer  a  criminal  charge  against  the  accused.  If 
they  think  it  is,  an  indictment  is  drafted  by  the  attorney- 

^  Ante,  §§  606,  655,662. 

2  State  V.  Keyes,  Smith  (N.  H.),  135;  State  v.  Freeman,  13  N.  H.  488; 
■Com.  V.  Smyth,  11  Cash.  473.  See  als©  People  v.  Lawrence,  21  Cal. 
368. 

3  Citing  Com.  Dig.  Indictment  A;  Crown  Cir.  Com.  32;  1  Chit.  Cr.  L. 
162,  163,  324;  4  Bl.  Com.  302  et  seq. 


712  PROCEEDINGS  OF  THE  GRAND  JURY.    [CH.  XXXI. 

general  or  solicitor,  and  signed  by  liiin.  This  procetMi- 
ing  is  not  like  a  charge  made  by  some  other  person,  and 
laid  before  them  for  their  approval  ;  but  the  indictm(Mit 
is  the  result,  in  legal  form,  of  their  deliberations.  The- 
reason  for  the  P^nglish  form  does  not  exist ;  for  it  is  un- 
necessary that  they  should  certify  that  their  own  proceed- 
ings are  true.  There  is,  strictly  speaking,  no  hill  to  be 
certified  to  be  correct,  in  our  practice— the  distinction 
between  a  bill  and  an  indictment,  which  arises  in  P^ngland 
from  their  forms,  not  being  necessary  here.  A\'ith  us,  the 
accusation  does  not  take  the  form,  first  of  a  bill  and  then  of 
an  indictment,  but  it  exists  only  as  the  latter.  *  *  *  jf 
anything  more  than  the  signature  of  the  foreman  could  be 
necessary  to  prove  that  the  instrument  signed  by  the  pros- 
ecuting officer  is  authorized  by  the  grand  jury,  the  certificate 
should  be  '  a  true  indictment'  rather  than  '  a  true  bill.'  As 
these  words  are  merely  a  form,  and,  moreover,  an  incorrect 
form  ;  and,  as  the  reason  for  them  does  not  exist  here,  we 
think  that  their  omission  is  not  a  ground  for  arrestinsr  the 
judgment."^ 

The  New  Hampshire  court,  although  dispensing  with  the  in- 
dorsement of  the  certificate  of  the  finding,  insist  upon  the  rule 
laid  down  by  some  courts,  that  the  indictment  shall  bear  the 
teste  of  the  presiding  officer  of  the  grand  jury.  The  omis- 
sion of  this  attestation  may  be  shown  even  in  arrest  of 
judgment.  "Nothing  short  of  such  authentication,"  said 
Upham,  J.,  "  should  be  regarded  as  competent  evidence  of 
their  proceedings."  ^ 

§  (J73.  Contrary  Decisions. —  The  law,  as  declared  in  the 
previous  section,  is  pointedly  controverted  in  other  cases. 
It  was  early  held  in  Maine  that  the  omission  of  the  certifi- 
cate, "a  true  bill,"  must  be  regarded  as  fatal  to  the  indict- 
ment, and   that,    too,    although   the    indictment   bore    the 

1  state  V.  Freeman,  Vi  N.  H.  488,  490. 

■-'State  V.  Squire,  10  N.  II.  55S,  560.  See  also  State  v.  Freeman, 
supra.  Upon  the  reasoning  of  tlie  court,  the  same  rule  ought  to  apply 
as  in  the  case  of  a  simple  presentment.  This  does  not  require  the 
indorsement  of  the  foreman.    State  v.  Cox,  6  Ired.  L.  440. 


§   674.]  INDORSEMENT  OF  FINDING.  71^ 

indorsement  of  the  foreman's  name.^  It  was  recently  so 
held  in  Louisiana.'^  And  the  Supreme  Court  of  Illinois  said 
upon  this  point:  "We  are  of  opinion  that  it  was  neces- 
sary, in  order  to  give  the  court  the  right  to  try  the  prisoner, 
that  the  grand  jury  should  have  indorsed  their  finding  on 
the  bill  of  indictment,  veritied  by  the  signature  of  their 
foreman.  This  was  indispensable,  and  as  it  appears  not  to 
have  been  done,  the  proceedings  were  coi^am  non  Judice."  * 
In  Websiej-'s  Case  ^  the  court  allowed  the  objection  to  be 
made  in  arrest  of  judgment,  and  in  Nomaque  v.  People,^ 
the  same  objection,  although  not  taken  in  the  court  below, 
was  heard  in  error.  These  decisions  are  based  upon  the 
common  law  rule  that  the  indorsement  is  a  part  of  the  in- 
dictment,^ and,  as  a  consequence,  that  the  defect  can  neither 
be  amended  nor  cured  by  verdict ;  the  rule  being  well  estab- 
lished that  the  ordinary  statutes  of  jeofails  do  not  extend 
to  indictments  or  proceedings  in  criminal  cases.' 

§  (J74.  Certificate  of  Finding  and  Attestation  by  Fore- 
man superfluous. —  Contrary  to  all  of  the  foregoing,  the 
conclusion  has  been  reached  in  some  cases,  that  neither  the 
certificate  of  the  finding,  nor  the  attestation  of  the  foreman, 
need  be  indorsed  upon  the  indictment.  We  have  hitherto 
seen  that  some  courts  are  willing  to  dispense  with  one  or 
the  other  of  these  indorsements,  but  not  with  both.  But 
the  Court  of  Appeals  of  Virginia  declare  the  law  to  be  that 
"  it  is  not  necessary  that  a  bill,  in  order  to  be  made  a  good 
indictment,  should  have  on  it  an  indorsement  by  the  grand 
jury,  or  its  foreman,  that  it  is  a  true  bill.  It  is  sufficient 
that  the  bill  was  actually  found  to  be  a  true  bill  by  the 
grand  jury ;  that   such  finding  was  announced  in  court  by 

1  Webster's  Case,  5  Me.  432. 

2  State  V.  Morrison,  30  La.  An.  817. 

3  Nomaque  v.  People,  1  111.  109,  110. 
*  5  Me.  432. 

«  Supra.  And  so  in  Morrison  v.  State,  30  La.  An.  817.  But  see  State 
V.  Davidson,  12  Vt.  300,  303. 

6  Aide,  §  666.  See  also  Rookwood's  Case,  13  How.  St.  Tr.  139,  159,  per 
Lord  Chief  Justice  Holt. 

^  1  Chitty  Cr.  L.  297.    See  also  State  v.  Squire,  10  N.  H.  558. 


714         PROCEEDINGS  OF  THE  GRAND  JURY.   [CH.  XXXI. 

the  clerk  on  the  return,  and  with  the  acquiescence  of  the 
grand  jury,  and  entered  of  record."  ^  Accordingly,  where 
the  foregoing  conditions  wore  satisfied,  it  was  held  imma- 
terial that  the  indictment  was  indorsed  and  attested  by  the 
foreman  as  "  a  true  gun."  ^ 

The  Court  of  Appeals  of  New  York,  in  a  late  case,  where 
the  copy  of  the  indictment,  as  set  forth  in  the  record,  did  not 
contain  the  indorsed  certificate  of  the  foreman  of  the  grand 
jury  that  it  was  a  true  bill,  and  the  ommission  was  not 
made  the  ground  of  an  objection  in  the  court  below,  held 
that  the  objection  could  not  be  made  at  this  stage  of  the 
proceedings.  "  The  record,"  said  Church,  C.  J.,  '*  states 
that  the  grand  jury  appeared  in  open  court,  and  duly  pre- 
sented the  indictment,  a  copy  of  which  is  set  forth.  From 
this  we  must  assume  that  it  was  presented  according  to  law. 
The  certificate  of  the  foreman  is  no  part  of  the  indictment, 
but  is  the  statutory  mode  of  authenticating  it,  and  the  record 
furnishes  evidence  that  it  was  so  authenticated."  ^ 

§  675.  Certificate  and  Attestation  by  Foreman  required 
by  Statute.  —  Statutes  will  be  found  in  about  one-half  the 

1  White  V.  Com.,  29  Gratt.  824,  828.  This  view  was  first  broached  by 
Dade,  J.,  iu  Burgess  v.  Com.,  2  Va.  Cas.  487,  and  afterwards  adopted  in 
Price  V.  Com.,  21  Gratt.  846.  The  same  rule  seems  to  have  been  declared 
by  the  Territorial  Supreme  Court  of  Iowa,  and  later  countenanced  by 
the  State  Supreme  Court.  Harriman  v.  State,  2  G.  Greene,  270,  279. 
Henderson,  C.  J.,  of  the  Supreme  Court  of  North  Carolina,  said,  in  an 
early  case  :  "I  have  been  much  at  a  loss  to  see  the  necessity  of  any  in- 
dorsement. The  grand  jury  come  into  court  and  make  tlieir  return, 
which  the  court  records,  not  from  that  memorandum  made  out  of  court, 
but  they  jironounce,  or  are  presumed  to  pronounce  it  iu  open  court.  It 
is  not  the  indorsement  wliich  is  the  record,  but  tliat  which  is  recorded  as 
the  jurors'  response.  The  indorsement  is  a  mere  minute  for  making  the 
record.  But  I  believe  the  law  is  understood  to  be  otherwise."  State  v. 
Collins,  3  Dev.  117,  121.  See  also  State  v.  Calhoon,  1  Dev.  &  B.  374,  376 ; 
State  v.  Cox,  6  Ired.  L.  440,  446. 

2  White  V.  Cora,  supra.  Chief  Justice  Gibson,  on  ouf^  occasion,  held 
that  it  was  not  error  to  sentence  a  defendant  convicted  on  an  indictment 
indorsed  merely,  "  A  bill."     Sparks  v.  Com.,  9  Pa.  St.  354. 

3  Brotherton  v.  People,  75  N.  Y.  159,  162.  See  also  Price  v.  Com.,  21 
Gratt.  846;  Harriman  v.  State,  2  G.  Greene,  270;  Waukonchawneekaw 
v.  United  States,  Moms,  332;  Gardner  v.  People,  4  111.  83;  Townsend  v. 
State,  2  Blackf.  151.    But  compare  Conner  v.  State,  19  Ind.  98. 


§   676.]  INDORSEMENT  OF  FINDING.  715 

States  and  Territories,  directing  that  the  indictment,  when 
found,  shall  be  indorsed  "a  true  bill,"  which  indorsement 
shall  be  signed  by  the  foreman  of  the  grand  jury.^  In  addi- 
tion, statutes  of  Kansas  and  Indiana  require  the  court  to 
examine  each  indictment  as  returned,  to  make  certain  that 
it  is  properly  indorsed.^  And  this  the  Supreme  Court  of 
Illinois  held,  on  one  occasion,  to  be  the  duty  of  the  court, 
irrespective  of  any  statutory  injunction." 

§  676.  Whether  these  Statutes  Mandatory. —  The  early 
Missouri  statute  provided  that  "  the  foreman  of  the  grand 
jury  shall  certify  under  his  hand,  that  such  indictment  is  a 
true  bill."*  This  statute  did  not  make  the  foreman's 
signature  an  essential  part  of  the  indictment.  The  object 
of  the  statute  was  held  to  be  to  secure  the  authenticity  and 
genuineness  of  the  indictment.  The  statute,  therefore, 
was  expressly  stated  to  be  directory  only.^  Accordingly,  it 
was  too  late,  upon  a  motion  in  arrest  of  judgment,  to  raise 
the  objection  that  the  signature  of  the  foreman  was  omitted 
from  the  certificate.®  But  where  the  circuit  court,  upon 
the  arraignment  of  the  accused,  quashed  the  indictment  for 
this   omission,  the  Supreme  Court  refused  to  disturb  this 


1  Code  Ala.  1876,  §  4777 ;  Comp.  L.  Ariz.  1877,  §  619;  Cal.  Penal  Code, 
§  940;  Ark.  Dig.  Stat.  1874,  §  1777;  Gen.  Laws  Colo.  1877,  §  1475;  Bush's 
Dig.  Fla.,  p.  271,  §  26;  K.  S.  111.  1880,  p.  651,  §  17;  2  Stat.  Ind.  1876,  p. 
375,  §  16;  Miller's  K.  C.  Iowa,  1880,  §  4291;  Comp.  L.  Kan.  1879,  §4588; 
Bullitt's  Ky.  Cr.  Code,  §  119;  Comp.  L.  Mich.  1871,  §  7895;  2  Stat,  at 
Large  Minn.  1873,  p.  1038,  §  132;  K.  S.  Mo.  1879,  §1795;  Comp.  L.  Neb. 
1881,  p.  727,  §  408;  Comp.  L.  Nev.  1873,  §  1850;  Gen.  Laws  New 
Mexico,  1880,  p.  371,  §  16;  New  York  Code  Crim.  Proc.  1881,  §  268; 
E.S.  Ohio,  1880,  §  7206;  Stat.  Tenn.  1871,  §  5093;  Gen.  Laws  Oreg.  1872, 
p.  348,  §  60;  Laws  Utah,  1878,  §  143;  G.  S.  Vt.  1862,  p.  332,  §  14.  The 
Texas  Code  of  Criminal  Procedure  of  1879,  provides,  as  to  indictments 
found,  that  the  foreman  ''  shall  sign  the  same  officially."    Art.  413. 

■^  Comp.  L.  Kan.  1879,  §  4590;  2  Stat.  Ind.  1876,  p.  375,  §  17. 

3  Gardner  v.  People,  4  111.  83,  85. 

*  Rev.  Stat.  Mo.  1835,  p.  481,  §  19;  Spratt  v.  State,  8  Mo.  247;  State  v. 
McDonald,  8  Mo.  283. 

5  State  v.  Mertens,  14  Mo.  94,  97;  State  v.  Burgess,  24  Mo.  381,  383; 
State  V.  Murphy,  47  Mo.  274.  See  also  Dixon  v.  State,  4  G.  Greene,  381 ; 
Brotherton  v.  People,  75  N.  Y.  159, 162. 

•  State  V.  Mertens,  supra. 


716  PROCEEDINGS  OF  THE  GRAND  JURY.        [ciI.  XXXI. 

decision:  "The  proof  of  the  authenticity  of  the  indict- 
ment reiiuired  by  the  statute,"  said  Leonard,  J.,  "is  the 
most  convenient  and  trustworty  that  could  be  provided  ; 
and  we  see  no  reason  why  the  courts  should  not  make  the 
provision  effectual  bv  exacting  a  comi)liance  with  it,  when 
it  has  not  been  waived,  if  not,  indeed,  rendered  quite  un- 
necessary by  the  conviction  of  the  party  after  a  fair  trial."  ^ 
The  same  result  is  reached  in  California  by  express  pro- 
visions of  the  statutes.  The  indictment  may  be  set  aside 
upon  motion  by  the  defendant,  when  not  indorsed  as  re- 
quired by  law,  provided  the  motion  is  made  before  a  de- 
murrer or  plea  is  interposed  ;  but  if  not  thus  made,  the 
defendant  is  precluded  from  afterwards  taking  the  objec- 
tion."^ The  Texas  Code  of  Criminal  Procedure  provides 
that  the  indictment  "  shall  be  signed  officially  by  the  fore- 
man of  the  grand  jury,"  ^  but  elsewhere  expressly  declares 
that  the  want  of  such  signature  shall  not  constitute  cause 
of  exception  to  the  form  of  the  indictment.'*  The  courts 
continue  to  enjoin  this  duty  upon  the  foreman,  although 
this  officer's  signature  is  unnecessary  to  the  validity  of  the 
indictment.' 


ARTICLE   VI, 


OTHER    indorsements. 
SECTION. 

680.  lu  General. 

681.  Style  of  Case  and  Name  of  Offence. 
G82.    Signature  of  Prosecuting  Officer. 

1  State  V.  Burgess,  24  Mo.  381,  384.  See  also  Johnson  v.  State,  23  Ind.  32; 
Gardner  v.  People,  4  111.  83;  Laurent  v.  State,  1  Kan.  313;  Turns  v. 
Com.  6  Mete.  224. 

2  People  V.  Lawrence,  21  Cal.  368;  People  v.  Johnston,  48  Cal.  .549. 

3  Art.  420. 
*  Art.  529. 

5  See  Campbell  v.  State,  8  Tex.  App.  84;  Pinson  v.  State,  23  Tex.  579; 
State  V.  Powell,  24  Tex.  135;  Hannah  v.  State,  1  Tex.  App.  578. 


§    682.]  OTHER  INDORSEMENTS.  717 

683.  Indorsement  by  Private  Prosecutor. 

(1.)  Policj^  of  Statutes  reqairin<^. 

(2.)  Indorsement  by  whom  made. 

(3.)  Necessity  of. 

(4.)  Who  may  be  a  Private  Prosecutor. 

(5.)  Form  of  Indorsement. 

(6.)  Form  of  Objection  for  Want  of  Prosecutor. 

684.  Indorsement  of  List  of  Witnesses. 

(1.)  Statutes  requiring. 

(2.)  Policy  of  these  Statutes. 

(3.)  Names  of  Witnesses  by  whom  indorsed  or  noted. 

(4.)  Sufticiency  of  Indorsement. 

(5.)  Form  of  Objection  for  Want  of. 

§  680.  In  G-eneral. —  There  can  be  no  legal  intendment 
that  every  indorsement  which  appears  upon  an  indictment 
is  the  act  of  the  grand  jury,  expressing  their  will.^ 

§  681.  Style  of  Case  and  Name  of  Offense. —  It  is  the 
uniform  practice  of  the  piosecuting  officer  to  indorse  upon 
the  indictment  a  memorandum  of  the  case  for  convenience 
of  reference,  to  distinguish  it  from  other  papers  of  a  simi- 
lar character.  The  indictment  is  just  as  valid  without,  as 
with  this  indorsement.  The  grand  jury,  by  placing  under 
this  indorsement  their  certiticate,  "  A  true  bill,"  attested  by 
the  signature  of  their  foreman,  do  not,  in  any  manner, 
recognize  this  memorandum  as  a  correct  index  of  their 
tinding  :  therefore,  where  the  indorsement  is  for  one  offense, 
and  the  finding,  as  shown  by  the  body  of  the  indictment,  is 
of  another  and  different  offense,  the  mere  memorandum 
must  be  disregarded.^  For  the  same  reason,  the  misspelling 
of  the  defendant's  name  in  such  an  indorsement  cannot 
affect  the  validity  of  the  indictment.^  But  the  rule  is  held 
to  be  otherwise,  where  the  name,  as  misspelled,  is  incor- 
porated into  the  record  of  the  return  of  the  indictment.* 

§  682.  Signature  of  Prosecuting  Attorney. —  In  some 
States  the  practice  is  for  the  prosecuting  officer  to  sanction 

'  Cherry  v.  State,  G  Fla.  679,  683. 

2  Cherry  v.  State,  6  Fla.  679;  Collins  v.  People,  39  111.  233;   State  y. 
Itohfrischt,  12  La.  An.  382;  State  v.  Fitzpatrick,  8  W.  Va.  707. 

3  State  v.  Duestoe,  1  Bay,  377. 

<  Com.  v.  McKlnney,  8  Gratt.  589.  >„-ii_j 


718  PROCEEDINGS  OF  THE  (;HAN1)  JURY.    [CH.  XXXI. 

the  indictment  by  the  indorsement  of  his  name  with  the  ad- 
dition of  his  office.  The  necessity  of  this  indorsement,  the 
form  thereof,  and  the  effect  of  its  omission,  do  not  con- 
cern the  present  discussion.  Upon  this  point,  therefore,  a 
general  reference  will  ])e  made  to  recognized  authorities 
upon  criminal  procedure.^ 

§  683.  Indorsement  of  Name  of  Private  Prosecutor. — 
(1.)  Policy  of  Statute.'^  requiring. —  In  some  States,  also, 
statutes  are  found  requiring  the  indorsement  of  the  name 
of  the  person  at  whose  instance  the  prosecution  was  set  on 
foot.  This  is  only  in  a  minor  class  of  offences, —  misde- 
meanors affecting  the  person  or  property  of  the  prosecutor. 
The  policy  of  these  statutes  is  to  discourage  frivolous  and 
malicious  prosecutions,  by  taxing  the  prosecutor  with  costs 
in  cases  where  the  prosecution  turns  out  to  be  groundless. - 
Where  the  crime  reaches  the  grade  of  a  felony,  it  is  clear 
that  the  policy  of  these  statutes  no  longer  prevails.^ 

( 2. )  Indorsement  by  whom  made. —  In  those  jurisdictions 
where  indictments  are  formally  prepared  and  submitted  to 
the  grand  jury  as  the  basis  of  their  investigations,  this  in- 
dorsement is  probably  uniformly  made  by  the  prosecuting 
officer  before  sending  the  indictment  to  the  grand  jury.  It 
was  so  required  by  the  early  statutes  of  Kentucky  and  Ten- 
nessee,* and  other  courts  early  regarded   it  as  the  duty  of 


UBish.  Cr.  Proc.  (3d  ed.).  §§  702-704;  Whart.  Cr.  PL  &  Pr.  (8th 
ed.),  §§354-356. 

2  State  V.  Brown,  10  Ark.  104:  State  v.  Harrison,  19  Ark.  565;  United 
States  V.  Sandford,  1  Cranch  C.  C.  323;  Com.  v.  Hutcheson,  1  Bibb, 
355;  State  v.  Hurt,  7  Mo.  321;  Moyers  v.  State.  11  Humph.  40;  United 
States  V.  Mundel,  6  Cal.  245;  Wortham  v.  Com..  5  Kand.  669;  United 
States  V.  Flanakin,  Hempst.  30;  State  v.  Lumbrick,  1  Car.  L.  Rep. 
543;  State  v.  Darr.  63  N.  C.  516;  Com.  v.  Patterson,  2  Mete.  (Ky.),  374; 
Baker  v.  State,  12  Ohio  St.  214;  White  v.  State,  13  Ohio  St.  569;  Com. 
V.  Bybee,  5  Dana,  219;  McWaters  v.  State,  10  Mo.  167;  State  v.  Moles, 
9  Mo.  694. 

»  Lucy  V.  State,  8  Mo.  134;  State  v.  Rogers,  37  Mo.  367;  United  States 
V.  Flanakin,  Hempst.  30;  Baker  v.  State,  12  Ohio  St.  214;  Gabe  v. 
State,  6  Ark.  540. 

*  Allen  V.  Com.,  2  Bibb,  210;  Com.  v.  Hutcheson,  1  Bibb.  355;  Com. 
V.  Gore,  3  Dana,  474;  Moyers  v.  State,  11  Humph.  40. 


§    683.  J  OTHER  INDORSEMENTS.  7 lit 

this  officer  to  see  that  this  was  done.^  But  we  have  else- 
where stated  that  the  usual  practice  now  is  for  the  prosecu- 
ting officer  to  attend  the  session  of  the  grand  jury,  and  await 
their  decision,  before  preparing  any  indictment.^  The  result 
follows  that  the  grand  jury  may,  with  equal,  if  not  greater 
propriety,  make  this  indorsement.  Thus,  the  present  code 
of  Alabama  expressly  required  this  indorsement  to  be  made 
by  the  foreman  of  the  body,^  and  this  seems  to  be  the  duty 
of  the  foreman  under  the  Iowa  statute.*  Therefore,  since 
the  making  of  this  indorsement  is  one  of  the  possible  func- 
tions of  the  grand  jury,  especial  attention  will  be  devoted 
to  it. 

(3.)  Necessity  of . —  "It  is  extremely  clear,"  said  Ire- 
dell, J.,  "that  it  was  not  necessary  at  common  law  that 
the  prosecutor's  name  should  be  written  at  the  foot  of  the 
indictment,  and  although  the  act  of  Assembly  requires  it  to 
be  done,  where  the  prosecution  is  at  the  instance  of  an  indi- 
vidual, for  the  sake  of  rendering  him  liable  for  costs  if  he 
fails,  that  does  not  prevent  the  attorney  for  the  public  from 
preferring  an  indictment,  ex  officio ;  or  the  grand  jury  from 
finding  one  of  their  own  accord."  °  To  prevent  a  failure 
of  justice  arising  from  the  unwillingness  of  any  individual 
to  become  a  prosecutor,  the  Supreme  Court  of  North  Caro- 
lina early  conceded  to  the  prosecuting  officer  the  discretion, 
subject  to  the  control  of  the  court,  to  indorse  as  a  prosecu- 
tor whomsoever  he  thought  fit,  for  example,  the  governor 
of  the  State. ^  Carrying  out  this  view,  it  is  not  unusual  for 
the  statutes  requiring  the  indorsement  of  a  prosecutor  to 

^  Moore   v.  State,  13  Sm.  &  M.  259.     See   also  State  v.  McCourtney,  6 
Mo.  649;  State  v.  Hughes,  1  Ala.  655. 
2  Ante,  §  606. 
»  Code  Ala.  1876,  §  4778. 

*  Miller's  Rev.  Code,  1880,  §  4292. 

*  United  States  v.  Mnndel,  6  Call,  245,  247,  s.  c,  1  Hughes,  415.  See 
also  Eexv.  Lukeus,  1  Dall.  5;  State  v.  Eobinson,  29  N.  H.  274;  Wortham 
V.  Com.,  5  Rand.  669;  State  v.  McCann,  Meigs,  91;  United  States  v. 
Lloyd,  4  Cranch  C.  C.  467. 

6  State  V.  English,  1  Murph.  435.  The  foreman,  or  any  other  member 
of  the  grand  jury,  may  be  indorsed  as  prosecutor.  King  v.  State,  5  How. 
(Miss.)  730. 


720  rROCEEDI.VCS  OF  THE  GRAND  JURY.    [CH.  XXXI. 

provide  further,  as  in  Arkansas,  that  an  indictment  may 
nevertheless  be  presented  upon  the  information  of  one  or 
more  grand  jurors,  or  on  the  testimony  of  some  witness 
other  than  the  party  injured.^  Under  the  Missouri  statute, 
an  indictment  will  be  quashed,  unless  the  name  of  a  prose- 
cutor is  indorsed  upon  it,  or  a  statement  which  brings  it 
within  the  exceptions  of  the  statute.^ 

(4.)  Who  may  be  a  Private  Prosecutor. —  In  view  of  the 
policy  of  the  statutes  requiring  the  indorsement  of  a  prose- 
cutor, it  is  evident  that  its  purposes  would  not  be  accom- 
plished by  permitting  an  infant  or  married  woman  to  appear 
in  this  capacity.  Accordingly,  the  name  of  the  father  or 
husband  should  be  substituted.^  In  the  view  of  some 
courts,  the  name  of  one  appearing  as  a  voluntary  witness 
may  be  indorsed  as  prosecutor,*  and  the  statute  of  Oregon  ex- 
pressly requires  this  to  be  done.^  One  is  not  to  be  regarded  as 
a  prosecutor,  unless  his  name  is  marked  as  such  on  the  indict- 
ment,^ and  it  seems  that  no  person  ought  to  be  so  indorsed 
without  his  consent.'  But  this  consent  need  not  be  express. 
One  who  has  notice  before  trial  that  his  name  stands  upon 
an  indictment  as  the  prosecutor,  will  not  be  allowed,  after  a 
verdict  for  the  defendant,  to  have  his  name  struck  off.^ 
Under  the  Missouri  statute  the  name  of  the  prosecutor  must 
be  indorsed  as  such  by  himself.^ 

(5.)  Form  of  Indorsement. —  No  presumption  arises 
from  the  fact  that  a  name  is  indorsed  upon  an  indictment 
that  the  person  so  named  is  the  prosecutor.     There   must 

i  State  V.  Scott,  25  Ark.  107.     See  also  R.  S.  Mo.  1879,  §  1800. 

2  State  V.  Joiner,  19  Mo.  224.  Under  the  Alabama  statute  a  prosecutor 
need  not  be  indorsed,  unless  one  appears;  otherwise  the  indictment  must 
be  indorsed,  "  no  prosecutor.''     Code  Ala.  1876,  §  4778. 

«  Moyers  v.  State,  11  Humph,  40;  State  v.  Harrison,  19  Ark.  565. 

*  United  States  v.  Rawlinson,  1  Cranch  C.  C.  83;  Wortham  v.  Com., 
5  Rand.  669.     But  see  State  v.  Bailey,  21  Me.  62. 

5  Gen.  Laws  Oreg.  1872,  p.  348,  §  61. 

•  State  V.  Lupton,  63  N.  C.  483. 

7  State  V.  Hodsou,  74  N.  C.  151, 154. 

"  Bartlett  v.  Humphreys,  Hardin,  513.      See  also  Com.  v.  Dove,  2  Va. 
Cas.  29. 
9R.  S.  Mo.  1879,  §  1801. 


§   683.1  OTHER  INDORSEMENTS.  721 

be  some  memorandum  showing  the  purpose  of  this  indorse- 
ment.^ The  indorsement  that  "  this  indictment  is  preferred 
upon  the  testimony  of  the  party  injured,  who  was  sum- 
moned on  i)resentation,  and  by  order  of  the  grand  jury,"  is 
insufficient,  because,  under  such  indorsement,  the  injured 
party  would  not  incur  the  costs  of  the  prosecution  in  the  event 
of  an  acquittal.'^  The  omission  to  include  in  the  indorsement 
the  title  or  profession  of  the  prosecutor,  although  required 
by  statute,  does  not  affect  the  validity  of  the  indictment.^ 
Under  a  statute  which  requires  the  indictment  to  be  iyi- 
dorsed  by  a  prosecutor,  the  law  is  satisfied  by  the  prosecutor 
writing  his  name  as  such  at  the  foot  of  the  indictment.* 

(6.)  Form  of  Objection  for  Want  of  Prosecutor. — It  can 
hardly  be  said  that  statutes  requiring  the  indorsement  of  a 
private  prosecutor,  are  directory  merely,^  although  this  view 
has  been  taken  by  one  court. ^  However,  the  omission  to 
make  the  indorsement  is  not  generally  regarded  as  a  fatal 
defect.'  The  accused  may  refuse  to  plead  until  a  prosecutor 
is  indorsed,**  but  he  cannot  demur  generally  to  the  indict- 
ment for  this  omission,  because  the  indorsement  is  not  an 
essential  part  of  the  indictment.''  Under  the  early  decisions 
of  the  Kentucky  court,  a  motion  to  quash  or  set  aside  the 
indictment  for  want  of  a  prosecutor,  might  be  made  at  any 
time  before  the  jury  retired,^"  but  not  afterwards."  This  is 

1  Medaris  v.   State,   10    Yerg.  239.      But   see  Com.   v.  Dove,  2  Va. 
Cas.  29. 

2  State  V.   Denton,  14  Ark.  343;    Com.   t.   Hutcheson,   1  Bibb,  355; 
Wortham  v.  Com.,  5  Rand.  669;  Williamson  v.  State,  16  Ala.  431. 

3  Com.  V.  Dever,  10  Leigh,  685;  Com.  v.  Bybee,  5  Dana,  219.      Contra^ 
Com.  V.  Gore,  3  Dana,  474. 

4  Williams  v.  State,  9  Mo.  270. 

5  Towle  V.  State,  3  Fla.  202;  Barkley  v.  State,  Meigs,  93, 102. 
fi  State  V.  Hughes,  1  Ala.  655. 

'  Towle  V.  State,  supra. 

8  United  States  v.  Carr,  2  Cranch  C.  C.  439. 

9  United  States  v.  Sandford,  1  Cranch  C.  C.  323. 

i«  Com.  V.  Hutcheson,  1  Bibb,  355;  Allen  v.  Com.,  2  Bibb,  210;  Com. 
V.  Gore,  3  Dana  474. 

"  Haj'deu  v.  Com.,  10  B.  Mon.  125.    See  also  United  States  v.  Lloyd, 
4  Cranch  C.  C.  467. 

(46) 


722  PROCEEDINGS  OF  THE  GRAND  JUIIY.        [CH.   XXXI. 

doubtlos.s  the  hotter  rule.'  The  ohjec^tioii  will  not  he  heard 
ill  arrest  of  judgment,-  nor  for  the  first  time  in  a  court  of 
error.'  However,  in  the  view  of  other  courts,  this  indorse- 
ment is  ail  essential  part  of  the  indictment,  and,  upon  the 
principle  that  the  general  law  of  amendments  does  not  ap[)ly 
to  criminal  cases,  the  indictment  is  fatally  defective  if  the 
name  of  the  prosecutor  is  not  indorsed  as  re(j[uired  by  the 
statute.  The  defect  cannot  l)e  cured  l)y  indorsement  made 
after  verdict,  and  pending  a  motion  in  arrest  of  judgment.* 
§  684.  TudovHeiucnt  of  List  of  Witnesses. — (1.)  Stat- 
utes reqmrhigf. — Statutes,  too,  ai"e  more  common  rc(|uiring' 
a  return  into  court  of  a  list  of  the  witnesses  upon  whose 
testimony  indictments  have  been  found.  In  several  States 
the  practice  is  to  return  in  one  list  the  names  of  all  sworn 
during  the  term  ;  *  but  generally  a  list  of  the  witnesses  upon 
whose  testimony  the  indictment  was  found,  is  inserted  at 
the  foot  of  each  indictment,  or  indorsed  thereon  l)efore  it  is 
l)reseiited   to  the  court.®      In  those    jurisdictions   where  a 

1  United  States  v.  Sandford,  1  Crancli  C.  C.  ;>2S;  United  States  v.  Hel- 
ri^gle,  ;{  Cranch  C.  C.  179;  United  States  v.  Hollinsbeny,  3  Crauch  C. 
C.  645;  United  States  v.  Shackleford,  3  Cranch  C.  C.  287;  Towle  v.  State, 
^^  Fla.  202. 

2  United  States  y  Jamesson,  1  Cranch  C.  C.  (32;  United  States  v.  Sin- 
gleton, 1  Cranch  C.  C.  237.  So  provided  by  statute  in  Missouri.  R.  S. 
1879,  §  1801. 

3  Vezain  v.  People.  40  111.  397. 

4  Moore  v.  State,  13  Sm.  &  M.  259;  Kirk  v.  State,  13  Sni.  &  M.  406; 
Peter  v.  State,  3  How.  (Miss.)  433;  State  v.  McCourtney,  6  Mo.  649,652; 
Medaris  v.  State,  10  Yerg.  239;  Moyers  v.  State.  11  Humph.  40. 

5  Code  Ala.  1876,  §  4773;  R.  S.  Me.  1871,  ch.  134,  §  6;  G.  S.  Mass.  1860, 
ch.  171,  §  9;  Rev.  N.  J.  1877,  p.  520,  §  8;  R.  S.  Wis.  1878,  §  2549. 

e  Cal.  Penal  Code,  §-943;  Ark.  Dig.  Stat.  1874.  §  1778;  R.  S.  111.  1880, 
p.  651,  §  17;  Miller's  R.  C.  Iowa,  1880,  §  4293;  Bullitt's  Ky.  Cr.  Code. 
§  120;  2  Stat,  at  Large,  Minn.  1873,  p.  1039,  ij  134;  Comp.  L.  Nev.  1873. 
§  1853;  Gen.  Laws  Oreg.  1872,  p.  348,  §  61 ;  Tex.  Code  Cr.  Proc.  1879. 
Art.  413;  R.  S.  W.  Va.  1879.  ch.  .')3,  §  8;  New  York  Code  Crim.  Proc. 
1881,  §  271;  Comp.  L.  Mich.  1871,  §  7887;  Comp.  L.  Kan.  1879,  §  4591; 
R.  S.  Mo.  1879,  §  1802;  2  Stat.  Ind.  1876,  p.  375,  §  18.  See  also,  Comp. 
L.  Ariz.  1877,  §  622;  Laws  Utah,  1878,  §  145.  In  Virginia,  this  is  re- 
quired only  in  the  case  of  presentments  by  the  grand  jury.  Code  Va. 
1873,  p.  1237,  §  9;  Com.  v.  Gordon,  1  Cranch  C.  C.  48.  In  Iowa  the  law 
is  satisfied  witli  a  list  of  such  witi-esses  only  as  give  material  testimony. 


§   684.]  OTHER  INDORSEMENTS.  72.^ 

general  list  of  the  witnesses  examined  durino-  the  session  is 
returned,  the  names  of  those  upon  whose  testimony  any 
particular  indictment  has  been  found,  will  be  furnished  upon 
demand.^  But  in  Massachusetts  this  privilege  is  confined  to 
capital  cases. - 

(2.)  Policy  of  the^e  Statutes. —  The  policy  of  such  stat- 
utes is,  evidently,  that  the  accused  may  be  informed  of  the 
nature  of  the  testimony  against  him,  and  thus  be  enabled  to 
prepare  his  defense.'^  Where  the  indictment  has  been  found 
after  a  preliminary  examination  of  the  accused  before  a 
committing  magistrate,  which  is  the  usual  course  in  many 
jurisdictions,  this  grace  of  the  law  is  not  so  essential  to  his 
defence.  In  a  former  part  of  this  chapter,  however,  we 
have  shown  that  indictments  may  originate  in  a  variety  of 
other  ways."*  In  such  cases,  the  accused  are  usually  in- 
dicted without  previous  notice  of  the  charge  ;  therefore, 
upon  general  principles  of  justice,  these  defendants  ought 
to  be  placed  upon  the  same  footing,  with  reference  to  facili- 
ties for  making  their  defence,  as  is  enjoyed  by  others  pri- 
marily accused  before  a  magistrate. °  There  is  no  rule  of 
public  policy  demanding  that  the  names  of  witnesses  before 
the  grand  jury  shall  be  kept  secret,  as  is  obvious  from  the  fact 
that,  formerly,  witnesses  were  usually  sworn  in  open  court 
and  sent  to  the  grand  jury,  and  are  yet,  under  the  English 
practice.''  The  power  was  granted  to  the  foreman  of  this 
body  to  swear  witnesses,  not  for  the  purpose  of  concealing 
the  names  of  those  testifying,  l)ut  that  the  transaction  of 
business  might  be  facilitated. 

(3.)  Names  of  Witnesses  I)y  wJtom  indorsed  or  noted. — 
When  the  practice  was  to  swear  the  witnesses  in  open  court, 

State  V.  Little.  42  Iowa  51.  lu  Kansas,  Missouri  and  liKliana.  the  stat- 
utes require  nothing  more. 

1  Com.  V.  Knapp,  9  Pick.  49(),  49S;  Com.  v.  Locke,  14  Pick.  485;  Bird 
V.  State,  50  Ga.  585;  People  v.  Naughton,  7  Abb.  Pr.  (N.  S.)  42L 

-  Com.  V.  Edwards,  4  Gray,  1,  5. 

■■  Ray  V.  State,  1  G.  Greene,  316. 

•*^««e,  §611. 

5  People  V.  Naughton,  7  Abb.  Pr.  (N".  S.)  421. 

«  Ante,  §  G25. 


724  PROCEEDINGS  OF  THE  GRAND  JUI{Y.        [CII.   XXXI 

it  was  the  duty  of  the  clerk  to  indorse  their  names  upon  the 
indictment,'  but  this  practice  is  now  quite  obsolete.^  Some 
of  the  statutes,  in  express  terms,  mai<e  it  the  duty  of  the 
foreman  to  note  and  return  the  list  of  witnesses  required.'' 
In  Texas  this  is  done  by  the  prosecuting  attorney.''  In 
other  States  the  statutes  do  not  specify  by  whom  the  list 
•^hall  be  made  and  returned,  in  which  case  it  is  presumed 
that  this  might  properly  be  done  by  the  grand  jury 
through  their  foreman,  although  it  is  also  done  by  the  pros- 
ecuting attorney.^ 

(4.)  Sufficiency  of  Indorsement. —  It  seems  not  material 
4ipon  what  part  of  the  paper  upon  which  the  indictment  is 
written  the  names  of  the  witnesses  are  noted. ^  Notwith- 
standing a  misnomer  in  the  christian  name  of  one  of  the 
witnesses,  the  indorsement  is  sufficient  when  his  identity 
sufficiently  appears  from  the  facts. ^ 

(5.)  Form  of  Ohjectionfor  Want  of. — The  law  upon  this 
•point  seems  to  be  the  same  as  previously  stated,  in  regard 
to  the  objection  arising  from  the  want  of  a  prosecutor  when 
required  by  law.  It  would  seem  that  the  statutory  require- 
ment must  be  observed,^  notwithstanding  the  opinion  has 
been  advanced  by  high  authority  that  it  is  merely  director}' 
to  the  foreman.''  But  the  objection  arising  from  the  fact 
>lhat  the  names  of  the  witnesses  are  not  indorsed  as  required 


'^  Gilman  v.  State,  1  Humph.  59. 

2  Ante,  §  625,  subsec.  3. 

3  Code  Ala.  1876,  §  4773;  R.  S.  Me.  1871,  cb.  134,  §  6;  G.  S.  Mass. 
1860,  ch.  171,  §  9;  Comp.  L.  Mich.  1871,  §  7887;  Rev.  N.  J.  1877,  p.  526. 
5}  8;  R.  S.  Wis.  1878,  §  2.549;  R.  S.  III.  1880,  p.  651,  §  17;  Gardner  v. 
People,  4  111.  83,  89. 

<  Tex.  Code  Cr.  Proc.  1879,  Art.  413. 

^  Jilhird  V.  Com.,  26  Pa.  St.  169;  State  v.  Dickson,  6  Kan.  200. 

«  Scott  V.  People,  63  111.  508. 

^  State  V.  Stanley,  33  Iowa.  526.  The  indorsement  of  a  witness  by  the 
'description,  "  Ex-sheriff  Upright,"  to  indicate  one  Morris  J.  Upright, 
was  held  sufRcient.     State  v.  McComb,  1?  Iowa.  43. 

8  Ray  V.  Stare,  1  G.  Greene,  316. 

3  Cora.  V.  Edwards,  4  Gray,  1 ;  Steele  v.  State,  1  Tex.  142;  Territory  v. 
Anderson,  1  Wyoming,  20. 


§   686.]  IRRKGULARITIES  IN  PROCEEDINGS.  72i> 

by  law,  can  he  taken  only  in  the  trial  court.'  It  cannot  be 
pleaded  in  bar  of  the  indictment.'^  The  objection  can  onl>' 
be  made  by  a  motion  to  quash,  or  to  set  aside  the  indict- 
ment. If  this  motion  is  not  made  before  demurrer  or  plea,, 
the  defendant  is  precluded  from  afterwards  taking  the  objec- 
tion.^ However,  under  the  statutes  of  New  York*  and 
lowa,^  the  omission  may  be  supplied  after  objection  is 
raade.*^ 


ARTICLE  VII. 


IRREGULARITIES    IN    PROCEEDINGS. 
SECTIOX. 

680.    Time  for  Objectiou. 
687.     Form  of  Objection. 

§  686.  Time  for  Objectiou. —  What  was  said  in  a  formei 
chapter,^  as  to  the  time  for  entering  objections  to  regularity 
of  the  organization  of  the  grand  jury,  is  of  general  applica- 
tion upon  this  point.  The  rule  is  that  no  informality  in  the 
proceedings  of  the  grand  jury  upon  the  Hnding  of  the  in- 
dictment can  be  alleged  after  verdict.'^     The  reason  for  this 

'  Harrimaii  v.  State,  2  G.  Greene,  270,  280;  Rxy  v.  State,  1  G.  Greene,. 
316. 
2  Com.  V.  .Jillard,  26  Pa.  St.  169. 

*  People  V.  Symonds,  22  Cal.  :US;  People  v.  Lopez,  26  Cal.  112;  Peo- 
ple V.  King,  28  Cal.  265;  State  v.  Brandon,  28  Arl<.  410;  State  v.  Flynn, 
42  Iowa,  164. 

*  New  York  Code  Crini.  Proc.  (oh.  442  of  Laws  1881),  §  271. 
5  Miller's  Rev.  Code,  1880,  §  4338. 

•"  State  V.  Flynu,  supra. 

'  Ante.,  §  550. 

«  State  V.  Kimball,  29  Iowa.  267;  Wliite  v.  Com.,  29  Giatt.  824;  State  v.. 
Pate,  67  Mo.  488;  Bedford  v.  State,  2  Swan,  72;  Floyd  v.  State,  30  Ala. 
511;  State  V.  Burlingbam,  15  Me.  104;  State  v.  Wolcott,  21  Conn.  272; 
State  V.  Merteu?,  11  Mo.  94;  State  v.  Burgess,  24  :Mo.  381 ;  State  v.  Har- 
ris, 73  Mo.  287. 


726         PKOCEEDINGS  OF  THE  GKAND  JURY.   [CH.  XXXI. 

l)lainlv  is,  that  the  result  shows  that  the  person  ought  to 
have  been  tried.  An  indictment,  valid  in  all  respects,  deter- 
mines nothing  more. 

§  687.  Form  of  Objection. —  As  to  the  form  of  objection, 
the  authorities  exhibit  the  same  lack  of  uniformity  as  before 
noticed.'  Since  irregularities  in  the  proceedings  must  gen- 
erally be  shoAvn  deJtors  the  record,  the  proj)er  form  of  ob- 
jection would  seem  to  be  a  plea  in  abatement.'-  It  was  so 
held  where  an  intruder  was  present  during  the  deliberations 
of  the  grand  jury  •?  where  more  or  less  than  the  statutory 
number  concurred  in  the  finding.'*  But  it  has  been  held 
that  it  may  be  shown,  upon  a  motion  to  (|uash,  that  more  or 
less  than  the  proper  number  concurred  in  the  finding  :*  that 
the  finding  -svas  based  upon  incompetent  evidence  f  that  the 
indictment  was  returned  without  the  examination  of  any  wit- 
ness ;  ^  that  the  only  witness  upon  whose  testimony  it  was 
found,  was  not  sworn  ;^  that  the  grand  jury  were  guilty  of 
misconduct.-'  And,  according  to  some  cases,  it  is  discre- 
tionary with  the  court  to  decide  which  mode  may  be  adopted, 
irrespective  of  the  question  whether  the  irregularities  are 
apparent  upon  the  record.'" 

1  Ante,  §  .541  rt  Sfj. 

2  Dun-  V.  State,  53  Miss.  425;  Shropshire  v.  State,  12  Ark.  190. 

3  Durr  V.  State,  snpra. 

*  Shropshire  v.  State,  supra;  Low's  Case,  4  Me.  439. 

"  People  V.  Shattuck.  0  Abb.  N.  C.  33;  Com.  v.Leisening,  10  Reporter, 
:379. 

^  United  States  v.  Farrington.  5  Fed.  Eep.  343;  s.  c,  2  Crim.  L.  Mag. 
525;  People  v.  Hulbut,  4  Den.  133,  136,  per  Bronson,  J.;  People  v. 
Griggs.  60  How.  Pr.  17. 

'  State  V.  Gnidy,  MS.,  St.  Louis  Court  of  Appeals.  June.  1882. 

**  United  States  v.  Coolidge.  2  Gall.  364. 

"  Turk  V.  State.  7  Ohio  (Pt.  II.),  240. 

J"  State  V.  Cain,  1  Hawks.  352;  State  v.  llobcrts,  2  Dev.  &  B.  540;  State 
V.  Barnes,  7  Jones  Jv.  21;  State  v.  Horton.  G."  X.  C.  596;  Com.  v.  Leis- 
ening.  10  Reporter.  379. 


§    689.]  WHAT  THE  RECORD  MUST  SHOW.  727 


CHAPTER  XXXII. 


OF  WHAT  THE  RECORD  MUST  SHOW. 

SECTION. 

689.     Introductory. 

GOO.     Qualifications  of  Grand  -Jurors. 

G91.     The  Drawino;,  Summoning  and  Impanelling. 

C92.     Number  of  Jurors  Finding. 

693.  Their  Names. 

694.  Appointment  of  Foreman. 

695.  The  Swearing. 

696.  Return  of  Indictment. 

(1.)  This  must  explicitly  appear. 

(2.)  How  in  Case  of  Presentment. 

(3.)  x\mendment  of  Record  to  show  Return. 

697.  Filing  of  Indictment. 

698.  Names  of  Witnesses. 

§  689.  Introductory. — Undei'  the  English  practice,  in- 
dictments are  usually  found  in  an  inferior  court  of  limited 
Jurisdiction,  after  which  the  case  is  transferred  to  a  superior 
court  for  trial.  When  this  step  has  been  taken,  it  is  clear 
that  enough  of  the  record  of  the  court  where  it  has  been 
found,  must  be  transmitted  with  the  indictment,  to  show 
that  it  was  properly  found  and  is  valid. ^  So  much  of  the 
record  as  appears  with  the  indictment  is  called  the  caption. 
Tne  caption  is  no  part  of  the  indictment.  Mr.  Chitty  states 
this  to  be  "  a  formal  statement  of  the  proceedings,  describing 
the  court  before  which  the  indictment  was  found,  the  time 
and  place  where  it  was  found,  and  the  jurors  l)y  whom  it  was 
found,  and  these  particulars  it  must  set  forth  with  sufficient 

1  1  Bish.  Cr.  Froc.  (3d  ed.)  §  653. 


728  WHAT  THE  RECORn  MIIST  SHOW.  [CH.  XXXII. 

certainty. "'  '  When  it  is  considoi-ecl  tliat ,  in  this  country,  the 
court  in  which  the  indictment  is  found,  is,  almost  without  ex- 
ception, one  of  i^enend  jurisdiction,  and  that  the  trial  of  the 
indictment  is  there  had,  it  would  seem  that  tlu;  retention  of 
the  caption  with  all  the  formalities  i)rescribed  by  the  English 
l)ractice,  is  a  blind  adherence  to  a  form  wanting  in  vitality. - 
This  was  early  the  view  of  the  North  Carolina  court.  "  When 
it  appears,  therefore,"  said  Hendeksox,  C.  J.,  "  that  they 
have  taken  an  indictment,  it  shall  be  intended  that  it  was 
duly  taken  ;  that  it  was  taken  by  the  requisite  number  of 
good  and  lawful  men,  duly  drawn,  sworn  and  charged  ;  in 
other  words,  that  everything  was  done  correctly,  as  far  as 
concerns ybr??i  and  manner.^'  ^ 

Some  courts  insist  upon  the  English  practice,  while  others 
have  drawn  out  the  commencement  of  the  indictment  into  a 
kind  of  caption  ;  as  a  consequence,  the  question  what  the 
caption  ought  to  contain,  as  noticed  by  a  distinguished 
authority  upon  criminal  procedure,  is  one  of  great  per- 
plexity.* However,  we  are  now  especially  concerned  to 
discover,  not  what  the  caption  or  the  indictment  must  con- 
tain, l>ut  what,  according  to  the  general  view,  ought  to 
appear  of  record  in  respect  of  the  organization  and  proceed- 
inofs  of  the  o:rand  iurv,  w'hich  Ix'ing  ascertained,  it  would 
seem  sufficient  that  the  facts  appear  anywhere  in  the  record.'* 

§  690.  Qualifications  of  Grand  Jurors. —  It  is  not  neces- 
sary that  the  record  should  show  that  the  grand  jurors  were 
possessed  of  the  qualifications  required  by  law,  as  that  they 
were  jyrobi  et  legales  homines;  for  this  is  a  necessary  intend- 
ment of  law.'^     This  rule  extends,  also,  to  the  enumeration  of 

1  1  Chitty  Cr.  L.  .326. 

2  State  v.  Peterson,  2  La.  Au.  921. 

'State  V.  Kimbrough,  2  Dev.  431,  441.  See  also  State  v.  Lewis,  3 
Hawks,  410;  State  v.  Seaborn,  4  Dev.  305.  308;  Gardner  v.  People,  4 
111.  83,  85. 

^  1  Bish.  Cr.  Proc.  (3d  ed.)  §  G65. 

»  1  Bish.  Cr.  Proc.  (3d  ed.)  §  GG7.  See  also  Bailey  v.  State,  3!»  Fud. 
438,  444. 

6  2  Bish.  Cr.  Proc,  §  155;  citing  1  Stark.  (Jr.  PI.  230,  237:  Keg.  v.  Biit- 
terfield,  2  Moody  «fe  R.  522;  Rex  v.  Vaws,  1  Mod.  24;  Rex  v.  Waite, 
4  Mod.  248;  Rex  v.  Roysted,  1  Keny.  255;    Aylett  v.  Rex,  3  Bro.  P.  C. 


^691.]         DRAWING,  SUMMONING  AND  IMPANELLING.  729 

the  special  qualiticatioiis  required  by  statute.  These  need  not 
appear  of  record.^  If  any  want  of  qualification  exists,  this 
must  be  shown  by  plea  in  abatement."^  It  should  appear, 
with  reasonable  certainty,  that  the  grand  jurors  who  returned 
the  indictment  were  of  the  proper  county.^  However,  it  is 
sufficient  that  they  are  described  as  grand  jurors,  or  jurors 
simply,  of  the  State  or  Commonwealth,  when  it  appears  from 
other  parts  of  the  record  that  they  are  of  the  proper 
county.*  But  where  the  criminal  jurisdiction  of  a  court  is 
confined  to  a  single  municipality,  it  is  not  sufficient  to  de- 
scribe the  jurors  as  chosen,  selected  and  sworn  in  and  for 
the  city  and  the  county.^ 

§  691.  The  Drawing',  Siiniinoniiig  and  Impanelling'. — 
It  need  not  be  stated  in  the  record  that  the  grand  jurors 
were  drawn  and  summoned,  or  by  what  authority  they  were 
summoned.'^     Although  it  is  usual   to   state  in  the  caption, 

529;  s.  c,  G  Ad.  &E1.  247,  note;  Rex  v.  Feariiley.  1  Loach  (4th  ed.) 
425;  Rex  v.  Davis,!  Car.  &  P.  470;  Dakui's  Case,  2  Saund.  290;  Rex  v. 
Marsh,  6  Ad.  &  El.  236;  s.  c,  1  Nev.  &  P.  187.  See  also  Bac.  Abr.  In- 
dictment I.;  2  Hawk.  P.  C.  c.  25,  §  126;  1  Chitty  C.  L.  333;  Mansell  v. 
Reg.,  8  El.  &  Bl.  54;  State  v.  Yancey,  1  Const.  Rep.  (S.C.)  237;  Turner 
V.  State,  9  Humph.  119;  Tipton  v.  State,  Peck,  308;  State  v.  McCarty, 
2  Chand.  (Wis.)  199.     Contra,  State  v.  Gibbous.  4  N.  J.  L.  4^.  46. 

1  Parks  V.  State,  4  Oh.  St.  234;  Beauchamp  v.  State,  6  Blackf.  299; 
Weinzorpflin  v.  State,  7  Blackf.  186;  Willey  v.  State,  46  Ind.  363;  Jerry 
V.  State,  1  Blackf.  395;  State  v.  Price,  11  JST.  J.  L.  203;  McGarry  v.  Peo- 
ple, 2  Lang.  227;  Bonds  v.  State,  Mart.  &  Yerg.  143;  Cornwell  v.  State. 
Mart.  &  Yerg.  147;  Bailey  v.  State,  39  Ind.  438,  443. 

2  Parks  V.  State,  supra. 

3  Byrd  v.  State,  1  How.  (Miss.)  171 ;  State  v.  Gilmere,  9  W.  Va.  641 ; 
Cornelius  v.  State,  12  Ark.  782;  Clark  v.  State,  1  Ind.  253. 

*  Com.  V.  Edwards,  4  Gray,  1;  Com.  v.  Fisher,  7  Gray,  492;  Byrd  v. 
State,  1  How.  (Miss.)  163,  171;  Cornelius  v.  State,  12  Ark.  782;  State  v. 
Xixon,  18  Vt.  70;  Lovell  v.  State,  45  Ind.  550;  Mackey  v.  State,  3  Oh. 
St.  362;  State  V.  Conley,  39  Me.  78;  State  v.  McCarty,  2  Chand.  199; 
State  V.  England,  19  Mo.  386;  Vaughn  v.  State,  4  Mo.  530,  .534:  State  v. 
Sprinkle,  65  N".  C.  463.  But  see  Williams  v.  State,  30  Tex.  404;  State  v. 
Hilton,  41  Tex.  565;  Morgan  v.  State,  19  Ala.  556. 

5  Bell  V.  People,  2  111.  397.' 

6  Nugent  V.  State,  19  Ala.  .540;  State  v.  Pile.  5  Ala.  72;  Morgan  v. 
State,  19  Ala.  557;  Shaw  v.  State,  18  Ala.  547;  Preston  v.  State,  63  Ala. 
127;  Collier  v.  State,  2  Stew.  (Ala.)  388;  Berrian  v.  State,  22  N.  J.  L.  9; 
State  V.  Jones,  9  N.  J.  L.  357,  371;  State  v.  Gustin,  5  N.  J.   L.  744,  746; 


730  WHAT  THE  RECORD  MUST  SHOW.  [CH.  XXXII. 

or  in  the  commencement  of  the  indictment,  that  the  present- 
ment is  by  the  grand  jurors  "impanelled,  charged  and 
sworn,"'  still,  the  omission  of  the  word  "impanelled" 
affords  no  grouiul  of  objection.-  The  Supreme  Court  of 
Indiana  early  held  a  contrary  view,-^  which  was  later 
al)andoned.^ 

§  G92.  Xumber  of  Jurors  Fiiidiii};. — It  need  not  appear 
of  record  that  the  indictment  was  found  by  at  least  twelve 
of  the  grand  jurors.'*  The  presence  of  less  than  the  pre- 
scribed number  will  not  be  presumed,  when  the  record  shows 
that  the  grand  jury  returned  the  indictment  into  court,  and 
nothing  contradictor}'  of  the  conclusion  that  twelve  of  the 
grand  jury  were  present,  is  disclosed  upon  the  record."'  But 
where  the  caption  sets  forth  that  the  indictment  was  found 
by  a  grand  jury  of  twelve  men,  when  the  legal  number  is 
sixteen,   a   conviction   on  the  indictment  will  be  set  aside.' 

§  693.  Their  Xames. — At  common  law,  the  names  of  the 
grand  jurors  usually  appeared  in  the  caption  to  the  indict- 
ment.^     But    this    requirement    is    now    generally   disre- 

State  V.  Price,  ll^N.  J.  L.  208.  See  also  Bell  v.  State,  42  Iiul.  335; 
Long  V.  State,  46  Ind.  582. 

1  State  V.  England,  19  Mo.  386;  Vaughn  v.  State,  4  Mo.  530;  Berrian  v. 
State,  22  N.  J.  L.  9,  29;  DaAvson  v.  People,  25  N.  Y.  399,  403;  Turner  v. 
State,  9  Humph.  119;  State  v.  Hilton,  41  Tex.  565;  State  v.  Delue, 
1  Chand.  166;   Fizell  v.  State,  25  Wis.  364;   Yates  v.  People,  38  111.  527. 

2  Anon.,  3  Salk.  191;  Green,  C.  J.,  in  Berrian  v.  State,  22  N.  J.  L.  9, 
29;  Nugent  v.  State,  19  Ala.  540;  Morgan  v.  State,  19  Ala.  557;  Shaw  v. 
State,  18  Ala.  547;  State  v.  Jones.  9  N.  J.  L.  357,  371.  But  see  Young  v. 
.State,  23  Oli.  St.  577.  "  Impounded,"  written  for  "  impanelled,''  does 
not  affect  tiie  validity  of  the  indictment.  Williams  v.  State,  3  Heisk. 
376. 

3  Sawyer  v.  State,  17  Ind.  435;  Conner  v.  State,  18  Ind.  428;  Conner  v. 
State,  19  Ind.  98;  Bodkin  v.  State,  20  Ind.  281 ;  Jackson  v.  State,  21  Ind. 
171. 

4  Alley  V.  State,  32  Ind.  476;  Holloway  v.  State,  .53  Ind.  554;  Bell  v. 
State,  42  Ind.  335;  Long  v.  State,  46  Ind.  582. 

6  Turns  v.  Com.,  6  Met.  224;  Com.  v.  Smyth,  11  Cush.  473,  476. 

6  Kussell  V.  State,  33  Ala.  366;  (Jardner  v.  People.  4  111.  83,  85;  Young 
V.  State.  6  Ohio  St.  435,  436;  Dawson  v.  People,  25  X.  Y.  399.  But  see 
State  V.  Gibbons,  4  N.  J.  L.  40.  47. 

'  Fitzgerald  v.  State,  4  Wis.  395. 

s  2  Hale  P.  C.  167;  2  Hawk.  P.  C.  c.  25.  §§  16.  17.  118;  1  Chitty  C.  L. 


§   694.]  APPOINTMENT  OF  FOREMAN.  731 

gardcd,'  although  some  courts  hold  that  the  record  of  the  case 
should,  ill  some  part,  show  by  Avhom  the  indictment  was 
returned.-  yl  fortiori,  where  the  names  are  inserted,  amis- 
take  in  the  name  of  a  grand  juror  which  does  not  render  his 
identity  df)ubtful,''  or  the  use  of  initial  letters  only  to  indi- 
cate their  christian  names, ^  will  not  affect  the  validity  of  the 
indictment.'' 

§  694.  Appointment  of  Foreman. —  In  the  view  of 
some  courts,  the  appointment  of  the  foreman  should,  in  all 
cases,  be  a  matter  of  record,  so  that  an  inspection  of  the 
record  will  always  show  to  a  certainty  who  was  foreman." 
Assuming  this  to  be  necessary,  it  is  evident  that  a  statement 
in  the  record  that  the  foreman  was  sworn,  necessarily  im- 
plies his  appointment  as  such  hy  the  court. ^  But,  although 
a  convenient  practice,  it  seems   not  essential  that  the  ap- 

326;  Clyncaid's  Case,  Cro.  Eliz.  654.  See  also  State  v.  Murphy,  9  Port. 
487;  Morgan  v.  State,  19  Ala.  .556;  Reeves  v.  State,  20  Ala.  33;  State  v. 
Williams,  2  McCord,  301;  Cornelius  v.  State,  12  Ark.  782;  Stated.  Gib- 
bons, 4  X.  J.  L.  40,  47;  State  v.  Jones,  9  N.  J.  L.  357;  People  v.  Bennett, 
37  N.  Y.  117;  Noles  v.  State,  24  Ala.  672,  694;  Rose  v.  State,  Minor,  28, 
29;  Perkins  v.  State,  50  Ala.  154;  Hatcher  v.  State,  18  Ga.  460;  Thomas 
V.  State,  5  How.  (Miss.)  20;  State  v.  Glasgow,  Conf.  (N.  C)  38.  No 
advantage  can  be  taken  of  the  omission  after  judgment.  Dawson  v.  Peo- 
ple, 25  N.  Y.  31>9.  405. 

'  1  Chitty  C.  L.  333;  Rex  v.  Davis,  1  Car.  &  P.  470;  Rex  v.  Marsh,  6 
Ad.  &  El.  236;  Rex  v.  Aylett,  id.,  p.  247,  note;  Low's  Case,  4  Me.  439 ; 
Fouts  v.  State,  8  Oh.  St.  98,  (overruling  tlie  obiter  dictum  to  the  contrary 
in  Mahanv.  State,  10  Ohio,  232);  Harriman  v.  State,  2  G.  Greene, 270, 280; 
Bailey  v.  State.  39  Ind.  443;  State  v.  Cook,  Riley  (S.  C),  2^14;  Young  v. 
Si  :)te.  G  Ohio.  435 ;  Com.  v.  Fisher,  7  Gray.  492;  State  v.  Brady.  14  Vt.  35:5 ; 
N\t  iii/orpflin  v.  State,  7  Blackf.  186:  McKinnej  v.  People,  7  III.  540; 
McGarry  v.  People,  2  Lans.  227;  Alley  v.  State,  32  Ind.  476;  Com.  v. 
James,  1  Pick.  375;  McCIure  v.  State,  1  Yerg.  206,  209;  State  v.  Sprinkle. 
65  N.  C.  463. 

2  Fonts  V.  State,  8  Oh.  St.  98;  Parks  v.  State,  4  Oh.  St.  234;  State  v. 
Peterson,  2  La.  An.  921. 

3  State  V.  Mahan,  12  Tex.  283;  Hayes  v.  State,  58  Ga.  35;  State  v. 
Norton,  23  N.  J.  L.  33. 

•<  Hatcher  v.  State,  18  Ga.  460. 

*  Such  mistakes  may  be  amended.  Jackson  v.  State,  11  Tex.  261 ;  State 
V.  McNamara,  3  Nev.  70.     But  see  Kneeland  v.  State,  63  Ga.  641. 

6  State  V.  Brown,  31  Vt.  603;  Com.  v.  Read,  Thach.  Cr.  C.  180. 

'  Woodsides  v.  State.  2  How.  (Miss.)  055;  Cody  v.  State,  3  How. 
(Miss.)  27. 


732  WHAT  THE  RECORD  MUST  SHOW.  [CH.  XXXII. 

pointment  of  this  officer  should  appeal'  of  record.'  A  reason 
for  disi)eiisiii<y  with  this  re<iuirenieiit  is  found  in  the  fact 
that  a  grand  jury  may  act  without  a  foreman.  In  such  a 
case,  indeed,  the  foreman's  certificate  that  the  bill  pre- 
ferred is  true,  must  be  wanting  ;  but  it  may  be  shown  by  the 
record  that  the  indictment  was  found  and  returned  into 
court  by  the  whole  panel.-  AVhere  an  indictment  is  duly 
presented,  it  will  be  presumed  that  one  whose  name  is 
signed  as  foreman  to  the  indorsement,  "a  true  bill,"  was 
regularly  appointed  as  such,  although  the  record  shows 
another  person  to  have  been  originally  so  appointed.  This  is 
based  ui)on  the  presumption  that  the  foreman  tirst  a[)- 
pointed  was  discharged,  and  that  the  officer  who  signed  the 
l)ill  was  appointed  to  till  his  phice.'^ 

§  695.  The  Swearinj'-. —  In  a  previous  chapter  we  noticed 
the  strict  requirement  of  the  hiw  that,  in  criminal  cases  at 
least,  it  shall  appear  from  the  record  that  the  trial  jury  were 
sworn.*  At  the  same  time  it  was  observed  that  the  rule 
was  otherwise  in  civil  cases,  since,  in  many  States,  the 
jurors  are  sworn  for  the  term,  and  not  in  each  case.  For 
the  same  reason,  many  courts  hold  that  it  is  unnecessary  that 
it  should  appear  of  record  that  the  grand  jury  were  sworn, 
these  jurors  l)eing  also  sworn  for  the  term,  and  with  refer- 
ence to  no  particular  case.  This,  like  many  other  incidents 
of  the  organization  of  the  body,  will  be  presumed.'' 

But  the  Mississippi  court  as  strictly  require,  in  the  case  of 
grand,  as  of  petit  juroi's,  that  it  shall  appeiir  of  record 
that  the  body  were  sworn. "^  That  such  was  the  fact  will  not 
be  inferred  from  the  bare  statement  that  the  foreman  of  the 
grand  jury  was  sworn  as  such,^  nor  from  a  recital   in  the 

1  People  V.  Jloberts,  G  Cal.  214;  State  v.  Ta/well,  ;50  La.  An.  884;  State 
V.  Guilford,  4  Jones  L.  83,  85;  Yates  v.  People. :«  111.  527. 
-'  Peter  v.  State,  3  How.  (Miss.)  4:«;  Friar  v.  State.  3  How.  (Miss.)  422. 
3  Bowe  V.  State,  25  Ind.  415;  Mohler  v.  People,  24  111.  2G. 
*  Ante,  §  298. 

5  State  V.  Watson,  31  La.  An.  370;  Ilollowayv.  State,  53  Ind.  554;  Com. 
V.  Pullan,  3  Bush,  47;  Bird  v.  State.  53  Ga.  U02. 

6  Cody  V.  State,  3  How.  (Miss.)  27. 
''  Cody  V.  State,  supra. 


§   695.]  THE  SWEARING.  733 

coramenceiiieiit  of  the  indictment  that  the  grand  jury  were 
"  duly  elected,  im[)anelled  and  sworn."  '  The  general  rule  is 
otherwise.  Conceding  the  necessity  that  it  should  appear 
of  record  that  the  grand  jury  which  found  the  indictment 
were  duly  impanelled  and  sworn,  this  may  be  shown  other- 
wise than  b}'  an  entry  of  the  clerk  npon  the  record  contem- 
poraneously with  the  transaction  of  the  formality  itself.  It 
will  be  sufficient  that  these  facts  appear  from  the  indict- 
ment.^ The  statement  that  "the  grand  jurors  upon  their 
oath  ^  present,"  in  the  commencement  of  the  indictment,  is 
a  sufficient  substitute  for  the  averment  that  the  grand 
jurors  were  selected,  impanelled,  sworn,  and  charged  to 
inquire,  etc.'* 

If  it  appears  from  the  record  that  the  grand  jurors  were 
"  sworn,"  it  will  be  presumed  that  they  were  duly  sworn  un- 
der a  proper  form  of  oath.^  It  need  not  be  averred  that  they 
were  "then  and  there"  sworn.*'  But  it  seems  the  rule  is 
otherwise  where,  as  under  the  English  practice,  the  indict- 
ment is  found  in  an  inferior,  and  tried  in  a  superior  court.' 
An  indictment  which  the  record  shows  to  have  been  presented 
by  the  grand  jurors  "  upon  their  oath  and  affirmation,"  need 

'  Abrani  v.  State,  25  Miss.  589;  Foster  v.  State,  31  Miss.  421.  See  also 
Lyman  v.  People,  7  Bradw.  345. 

2  Bailey  v.  State,  39  Ind.  438;  MoClure  v.  State,  1  Yerg.  206;  State  v. 
Lassley,  7  Port.  52G;  State  v.  England,  19  Mo.  38G;  State  v.  Freeman, 
21  Mo.  481. 

3  "  Oaths  *'  for  oath  is  no  ground  for  error.  Jerry  v.  State,  1  Blackf . 
305;  State  v.  Morris  Canal,  etc.  Co.,  22  N.  J.  L.  537;  McGarry  v.  People, 
2  Lans.  227;  Com.  v.  Sholes,  13  Allen,  554;  State  v.  Creight,  1 
Brev.   169. 

*  Morgan  v.  State,  19  Ala.  556;  Reeves  v.  State,  20  Ala.  33,  36;  McClurc 
V.  State,  1  Yerg.  206;  People  v.  Bennett,  37  N.  Y.  117;  State  v.  Kim- 
brough,  2  Dev.  431;  Alley  v.  State,  32  Ind.  476;  Bailey  v.  State,  39 
I  nd.  438. 

*  Potsdamer  v.  State,  17  Fla.  895;  Thomason  v.  State,  2  Tex.  App.  550; 
State  V.Loving,  16  Tex.  558;  Pierce  v.  State,  12  Tex.  210;  Byam  v. 
State,  17  Wis.  145;  Battle  v.  State,  54  Ala.  93. 

0  Woodsides  v.  State,  2  How.  (Miss.)  655;  Vaughn  v.  State,  4  Mo.  530; 
State  V.  Price,  11  N.  J.  L.  203;  Fizell  v.  State,  25  Wis.  364. 

'  People  V.  Guernsey,  3  Johns.  Cas.  265.  See  also  State  v.  Gibbons,  4  N. 
J.  L.  40,47. 


734  WHAT  THE  RECORD  MUST  SHOW.  [CH.  XXXII. 

not  sttite   why  :iny  of  the   jurors  attinned  instead  of  being 
sworn.^ 

§  t)96.  Ueturii  of  Indictment.  —  (1.)  This  must  ex- 
jMcitly  appear. —  In  his  treatise  upon  criminal  law,  Mr. 
C/HiTTY  states  that  when  the  indorsement,  "  a  true  bill,"  is 
made  upon  the  bill,  it  becomes  part  of  the  indictment,  and 
renders  it  a  complete  accusation  against  the  prisoner.^  This 
must  be  understood  with  the  qualification,  that  the  record 
further  shows  the  indictment  to  have  been  publicly  returned 
into  couit  as  required  by  law.^  This  recital  is  positively 
essential  to  establish  the  identity  of  the  indictment  found 
by  the  grand  jury,  with  that  which  appears  in  the  record, 
and  upon  whicii  the  defendant  is  arraigned/     The  omission 

'  Com.  V.  FisluM-,  7  Gray.  402:  McGany  v.  People,  2  Laus.  227.  Contra, 
State  V.  Harris.  7  N.  J.  L.  oOl :  State  v.  Gibbons,  4  X.  J.  L.  40.  46;  State 
V.  Fox,  9  N'.  J.  L.  244;  State  v.  Price.  11  \.  J.  L.  20:5. 

2 1  Chitty  C.  h.  324. 

3  Com.  V.  Cawood,  2  Va.  Cas.  527;  Cliappel  v.  State,  8  Yerg.  166;  Hite 
V.  State,  9  Yeig.  198;  Calhoun  v.  State,  4  Humph.  477;  Henry  v.  State, 
4  Humph.  270;  Bevlins  v.  State,  Meigs,  82;  Gardner  v.  People,  4111.83: 
Holton  V.  State,  2  Fla.  476:  Bennett  v.  State,  8  Humph.  118.  These 
authorities  seem  to  hold  that  it  is  not  only  necessary  that  the  record 
should  show  that  the  indictment  was  returned  into  court,  but  also  that  it 
was  returned  as  ••  a  true  bill."  This  strictness  is  unnecessary.  It  is 
enouglithat  the  record  shows  the  indictment  to  have  been  duly  returned 
by  the  grand  jury.  When  so  returned  and  filed,  the  endorsement  upon 
it  becomes  a  part  of  the  indictment,  showing  it  to  be  ''a  true  bill." 
Brown  v.  State,  7  Humph.  155;  State  v.  Guilford,  4  Jones  L.  83;  State 
V.  Harwood.  1  Winst.  (X.  C.)  228;  Whitehead  v.  Com.,  19  Gratt.  640; 
Goodwyn  v.  State,  4  Smed.  &  M.  520.  In  the  absence  of  evidence  to  the 
contrary,  it  will  be  presumed  that  the  indictment  was  returned  by  the 
liand  of  the  foreman.  People  v.  Blackvvell,  27  Cal.  65;  People  v.  Lee. 
2  Utah,  441  ;  State  v.  Beebe,  17  Minn.  241.  At  all  events,  it  can  make 
no  difference  to  the  accused,  whether  the  indictment  is  handed  in  by  the 
foreman  or  some  other  member  of  the  jury,  provided  it  is  done  in  their 
presence.    Laurent  v.  State,  1  Kan.  313. 

<  Goodwyn  v.  State,  4  Sm.  &  M.  520;  Laura  v.  State,  26  Miss.  174; 
Green  v.  State,  28  Miss.  687;  .Jenkins  v.  State,  30  Miss.  408;  Hague  v. 
State,  34  Miss.  616;  Lee  v.  State,  45  Miss.  114;  Nichols  v.  State,  46  Miss. 
284;  Pond  v.  State,  47  Miss.  39;  Mulligan  v.  State,  47  Miss.  304;  Cachute 
V.  State,  .50  Miss.  165;  Fitzcox  v.  State,  52  Miss.  923;  Speed  v.  State,  52 
Miss.  176;  Green  v.  State,  19  Ark.  178;  Wrocklege  v.  State,  1  Iowa,  167: 
Jackson  v.  State.  21  Ind.  79;  Ilarriman  v.  State,  2  G.  Greene,  270;  Miller 


§    696.]  RETURN  OF  INDICTMENT.  735 

to  make  the  proper  entry  of  the  return  of  the  indictment, 
cannot  be  cured  by  the  production  of  a  paper  purportinc:  to 
be  the  indictment,  duly  indorsed  and  signed  by  the  foreman 
of  the  grand  jury.^  Nor  will  this  defect  be  cured  by  the 
defendant  pleading  to  the  merits,  or  by  a  verdict  of  guilt3\'^ 
The  record  must  affirmatively  show  that  the  indictment  was 
returned.'  It  is  not  sufficient  that  the  indictment  is  set  out 
at  length  upon  the  record,  followed  by  a  copy  of  the  cer- 
tificate, attested  by  the  foreman,  that  it  is  a  true  bill.*  The 
language  of  the  record  must  be  explicit  to  show  a  return. 
This  cannot  be  inferred  from  a  casual  recital  that  the  de- 
fendant stands  indicted.'^  The  terms  of  the  record  must 
also  be  sufficiently  definite  to  identify  the  indictment  in  any 
case  as  one  returned  by  the  grand  jury."  A  general  recital 
that  the  grand  jury,  "  by  the  hand  of  their  foreman,  re- 
turned into  open  court  a  number  of  true  bills  of  indict- 
ment, which  were  received  by  the  court  and  filed  by  the 
clerk,"  is  not  sufficient.^  But  the  Indiana  court,  reversing 
their  earlier  decisions,^  held  that,  under  such  circumstances, 


V.  State,  2  Kan.  174;  State  v.  Gibbous,  4  N.  J.  L.  46;  State  v.  Hickman, 
8  N.  J.  L.  299;  Conner  v.  State,  18  Ind.  428;  Jackson  v.  State,  21  Ind. 
171;  Conner  v.  State,  19  Ind.  98;  Bodkin  v.  State,  20  Ind.  281;  State  v. 
Gilmore,  9  W.  Va.  641 ;  Drake  and  Cochran's  Case,  6  Gratt.  665.  The  date 
of  the  finding,  asestablislied  by  the  record,  must  control,  in  case  a  differ- 
ent date  is  mentioned  in  the  indictment.    Williams  v.  State,  35  Ga.  391. 

1  Com.  V.  Cawood,  2  Va.  Cas.  527. 

2  Com.  V.  Cawood,  supra;  Rainey  v.  People,  8  111.  71. 

3  Rainey  v.  People,  8  111.  71 ;  State  v.  Glover,  3  G.  Greene,  249. 

■*  Chappel  V.  State,  8  Yerg.  166.  It  it  not  the  usual  practice  to  incor- 
porate the  indicimcnt  into  the  record.  Hopkins  v.  Com.,  50  Pa.  St.  9, 
16;  Abram  v.  State,  25  Miss.  589. 

•J  Com.  V.  Cawood,  2  Va.  Cas.  527.  Daniel  and  Barbour,  .JJ.,  diss. 
\Vhere,  in  accordance  with  an  established  practice,  the  clerk  notes  on 
the  court's  minutes  the  title  of  each  bill  and  the  finding,  ••  true  bill," 
this  is  a  sufticient  record  of  the  finding.  Hopkins  v.  Com..  50  Pa.  St, 
9,  16. 

6  Cherry  v.  State,  6  Fla.  679,  688. 

'  Cornwell  v.  State,  53  Miss.  385;  Adams  v.  State,  11  Ind.  304;  Springer 
V.  State,  19  Ind.  180. 

*  Adams  v.  State,  and  Springer  v.  State,  supra. 


73t)  WHAT  THE  RFX'OKD  MUST  SHOW.  [cil.  XXXII. 

the  clerk  of  the  court  was  competent  to  identify  nn  indict- 
ment duly  indorsed  and  signed  by  the  foreman,  as  as  one 
that  had  l)een  returned.^ 

(2.)  Jlow  in  Case  of  a  Presentment. —  It  is  said  that 
when  a  irrand  jury  accuse  by  way  of  presentment,  and 
make  a  return  into  court  signed  by  the  twelve,  there  is  no 
such  necessity  that  the  fact  should  appear  of  record,  as  in 
the  case  of  an  indictment  which  is  attested  by  the  signature 
of  the  foreman  only.'^  But  it  is  believed  that  the  practice 
is  to  record  the  fact  of  a  presentment  as  well  as  the  finding 
of  an  indictment.^ 

(3. )  Amendment  of  Record  to  show  Return. —  It  has  been 
doubted,  and  sometimes  denied,  that  the  omission  of  an 
entry  of  the  return  of  the  indictment  may  be  supplied  by 
an  entry  upon  the  record,  nunc  pro  tunc*  But  as  the  pro- 
ceedings of  a  court  are  considered  to  be  in  fieri  until  the  close 
of  the  term  at  which  they  are  entered,^  it  is  now  generally  con- 
ceded that  this  may  be  done.''  Regularly,  it  would  seem, 
courts  ought  not  to  allow  such  an  entry  to  be  made  after 
the  expiration  of  the  term  at  which  the  indictment  was 
found."     Some  courts,  however,  are  less  strict.^ 

§  6t)7.  Filing  of  Indictment. —  The  record  need  not 
show  either  the  date  of  the  filing,  or  that  it  was  filed 
at  all.-' 

J  Wall  V.  State,  23  Ind.  151.    See  also  Shropshire  v.  State,  12  Ark.  190. 

2  State  V.  Muzingo,  Meigs.  112. 

3  State  V.  Cox,  6  Ired.  L.  440,  445. 

*  Hite  V.  State,  9  Yerg.  198.  In  this  connection  see  Holton  v.  State, 
2  Fla.  476,  and  particularly  the  argument  of  Brockenbrough  for  the 
l)laintiff  in  error. 

5  Saunders  v.  Coffin.  16  Ala.  421. 

«  Bodkin  v.  State,  20  Ind.  281;  State  v.  Roberts,  2  Dev.  &  B.  540; 
State  V.  Clark,  18  Mo.  432;  Long  v.  State,  56  Ind.  133;  Willis  v.  State,  '^ 
Head,  157;  Franklin  v.  State,  28  Ala.  9. 

'  Drake  and  Cochren's  Case,  6  Gratt.  665;  Cachute  v.  State,  50  Miss. 
165;  Cornwell  v.  State,  53  Miss.  385. 

»  Willis  V.  State,  3  Head,  157;  State  v.  Clark,  18  Mo.  432;  Long  v. 
State,  56  Ind.  133. 

»  State  V.  Hogan,  31  Mo.  342. 


§    698.]  NAMES  OF  WITNESSES.  737 

§  698.  Xames  of  Witnesses. —  It  need  not  appear  of 
record  what  witnesses  testified  before  the  grand  jury,  nor 
that  they  were  sworn.^ 

1  Harriman  v.  State,  2  G.  Greene,  270,  284;  Gilnian  v.  State,  1  Ilumpli. 
59;  King  v.  State,  5  How.  (Miss.)  730;  Gardner  v.  People,  4  111.  83,  85; 
McKinney  v.  People.  7  111.  540,551. 

(47) 


73a  OBLIGATION  OF  SECRECY.  [CII.   XXXIII. 


CHAPTER  XXXIII. 


OF    THE    OBLIGATIOX    OF    SECRESY. 

SECTION. 

701.  As  prescribed  by  the  Oath. 

702.  Policy  of  this  Requirement. 

703.  IiiterpretJition  of. 

704.  Testhnony  of  Grand  .Juror  to  show  wliat  was  tlie  Finding. 

705.  To  sliow  who  was  the  Prosecutor. 

706.  To  show  wlio  were  the  Witnesses  and  their  Testimony. 

(1.)   In  General. 

(2.)  Upon  an  Indictment  for  Perjur}'. 
(3.)  To  contradict  a  Witness. 
(4.)  To  conflrm  a  Witness. 

(5.)    To  show  that  the  Finding  was  based  on  Incompe- 
tent Testimony. 
(6.)  To  establish  other  Facts. 

707.  Testimony  of  others  tlian  Grand  Jurors  to  sliow  Proceedings. 

§  701.  As  proscribed  by  the  Oath. —  Referring  to  a  for- 
mer chapter, Ht  will  be  seen  that  the  form  of  oath,  in  general 
use  for  centuries,  binds  the  grand  juror  to  preserve  invio- 
lable the  secrets  of  the  grand  jury  room.  This  injunction 
of  secresy  is  still  preserved  in  the  oath  as  administered  in 
most  of  the  States,  but  not  in  all.  The  form  of  oath  as 
prescribed  by  the  statutes  of  nine  States  ^  and  tvi'o  territo- 
ries^ shows  nothing  of  the  kind.  But,  it  has  been  ob- 
served, the  obligation  of  secresy  does  not  arise  wholly  from 

1  Ante.  §  593. 

2  Cal.  Penal  Code,  §  903;  Miller's  R.  C.  Iowa,  1880,  §  4268;  Comp.  L. 
Kan.  1879,  §4567;  Comp.  L.  Nev.  1873,  §  1816;  Ark.  Dig.  Stat.  1874, 
§  1750;  G.  S.  Ky.  1879,  p.  570,  §  6;  R.  S.  111.  1880.  p.  65,  §  18;  Code  Va. 
1873,  p.  1237,  §  6;  Rev.  Stat.  W.  Va.  1879,  ch.  53,  §  5. 

3  Comp.  L.  Ariz.  1877,  §  584;  Gen.  Laws  Xew  Mexico,  1880.  p.  368, 
§11. 


§    703.]         INTERPRETATION  OF  THIS  REQUIREMENT.  739 

the  form  of  oath.  It  is  founded  upon  considerations  of 
public  policy.  Therefore,  the  Virginia  Court  of  Appeals 
consider  the  obligation  to  be  binding,  although  not  enjoined 
in  the  oath.^ 

§  702.  Policy  of  this  Requirement. —  The  reasons  for 
this  sanction  of  secrecy  are  probably  three-fold :  1.  That 
the  utmost  freedom  of  disclosure  of  alleged  crimes  and 
offenses  may  be  secured.  2.  That  perjury  and  subornation 
of  perjury  may  be  prevented,  by  withholding  the  knowledge 
of  facts  testified  to  before  the  grand  jury,  which,  if  known, 
it  would  be  for  the  interest  of  accused  persons,  or  their  con- 
federates, to  attempt  to  disprove  by  procuring  false  testimony. 
3.  To  conceal  the  fact  that  an  indictment  has  been  found 
against  a  party,  in  order  to  avoid  the  danger  of  an  escape 
of  the  accused  before  the  presentment  is  made.^ 

§  703.  Interpretation  of. —  A  careful  examination  of  the 
early  authorities  verities  the  observation  of  Ruffin,  C.  J., 
upon  the  words,  "the  State's  counsel,  your  fellows'  and 
your  own,  you  &hall  keep  secret  "  — that  "  the  whole  sense 
in  which  those  w^ords  are  to  be  received,  or  the  duration  of 

1  Little  V.  Com.,  25  Gratt.  921,  930.  See  also  United  States  v.  Keed, 
2  Blatchf.  435, 465,  per  Xelson,  J.  ••  Anciently,"  says  Mr.  Justice  Black- 
stone,  "  it  was  held,  that  if  one  of  the  grand  jury  disclosed  to  any  person 
indicted,  the  evidence  that  appeared  against  him,  he  was  thereby  made 
accessory  to  the  offence,  if  felony;  and  in  treason,  a  principal.  And  at 
this  day  it  is  agreed  that  he  is  guilty  of  a  high  misprision,  and  liable  to  be 
fined  and  imprisoned."  4  Bl.  Cora.  126.  The  statutes  in  some  of  the 
States  make  it  a  misdemeanor,  punishable  by  fine  and  imprisonment, 
and  in  others  a  high  contempt  of  court,  to  disclose  the  fact  that  an  in- 
dictment has  been  found,  before  the  accused  has  been  arrested  or  has 
given  bail  for  his  apppearance.  Code  Ala.  1876,  §  4134;  Cal.  Penal 
Code,  §  168;  Ark.  Dig.  Stat.  1874,  §  1464;  R.  S.  111.  1880,  p.  412,  §  412; 
Miller's  R.  C.  Iowa,  1880,  §  4284;  Corap.  L.  Kan.  1879.  §  4585;  R.  S.  Me, 
1871,  ch.  134,  §  8;  G.  S.  Mass.  1860,  ch.  171,  §  12;  Comp.  L.  Mich.  1871, 
§  7890;  2  Stat,  at  Large  Minn.  7873,  p.  1037,  §  124;  R.  S.  Mo.  1879, 
§  1806;  Comp.  L.  Neb.  1881,  p.  727,  §  406;  R.  S.  Ohio,  1880,  §  7204;  Gen. 
Laws  Oreg.  1872,  p.  348,  §  63;  Comp.  Laws  Utah,  1876,  §  1910;  R.  S.  Wis. 
1878,  §  2553. 

2  Com.  v.  Mead,  12  Gray,  167.  See  also  Crocker  v.  State,  Meigs 
(^Tenn.),  127;  Jones  v.  Turpin,  6  Heisk.  181;  State  v.  Broughton,  7  Ired. 
L.  96,  98;  State  v.  Fasset,  16  Conn.  457,  469;  McLellan  v.  Richardson, 
13  Me.  82;  Iluidekoper  v.  Cotton,  3  Watts,  50. 


740  OBLIGATION  OF  SECRECY.  [CH     XXXIII. 

the  secrecy  imposed,  we  do  not  find  accurately  stated  by 
any  ancient  writer  on  the  common  law."  ^  In  respect 
of  the  duration  of  the  secrecy,  it  is  stated,  upon  excellent 
authority,  to  be  a  principle  constantly  given  in  charges 
to  the  grand  juiy,  that  the  obligation  of  secrecy  is  per- 
petual, and  that  a  grand  juror  cannot  be  absolved  from 
it  at  any  i)criod  of  his  life.^  But  this  must  be  taken 
with  considerable  qualification.  Wiicn  the  case  comes 
on  for  trial,  it  is  too  late  for  subornation  of  perjury  grow- 
ing out  of  the  testimoii}''  of  the  grand  juror.  The  accused, 
also,  is  in  custody,  or  appears  under  recognizance.  The 
tongue  of  the  grand  juror  is  now  loosened,  not,  indeed,  that 
he  may  go  about  startling  his  neighbors  or  gratifying  the 
curious  by  a  disclosure  of  what  were  the  proceedings  of  the 
secret  tribunal  in  any  case.  On  the  contrary,  public  policy 
would  seem  to  forbid  such  revelations  at  all  times. ^  But 
when,  for  the  purposes  of  public  justice,  or  for  the  protec- 
tection  of  private  rights,  it  becomes  necessary,  in  a  court  of 
law,  to  disclose  the  proceedings  of  the  grand  jury,  the 
better  authorities  now  hold  that  this  may  be  done.^  It  is 
obvious  that  there  are  certain  transactions  of  the  grand 
jury  room  which  it  can  never  be  for  the  interests  of  justice 
to  disclose,  for  example,  what  particular  jurors  concurred 
in  or  opposed  the  finding  of  the    indictment,  what  opinions 

J  State  V.  Brong-hton.  7  Ired.  L.  96,  !)8. 

2  Davis'  Prec.  Ind.  13,  14,  16.  See  also  State  v.  Fasset,  16  Conn. 
457,  470. 

3Burnhani  v.  Hatfield,  5  Blaokf.  21;  Bindick  v.  Hunt,  43  Ind.  381; 
Sands  v.  Robison,  12  Sm.  &  M.  704. 

*  Com.  V.  Mead,  12  Gray,  167 ;  Burnham  v.  Hatfield,  o  Blackf .  21 ; 
Perkins  V.  State,  4  Ind.  222;  Shattuck  v.  State,  11  Ind.  473;  Burdick  v. 
Hunt.  43  Ind.  381;  .Jones  v.  Turpin,  6  Heisk.  181;  Sands  v.  Robison.  12 
tSnied.  &  M.  704;  State  v.  Wood,  53  N.H.  484;  United  States  v.  Charles, 
2  Cranch  C.  O.  76;  Tompson  v.  Massey,  3  Me.  305;  Gordon  v.  Com.. 
1(2  Pa.  St.  216;  s.  c,  1  Crim.  L.  Maoj.  583.  A  sweepinoj  provision  is 
found  in  the  Code  of  Georgia :  "  Grand  jurors  shall  disclose  everything 
Avliich  occurs  in  their  service,  whenever  it  becomes  necessary  in  any 
court  of  record  in  this  State."  Code  Ga.  1873,  §  3799.  A  grand  juror  is 
a  competent  witness  to  establish  a  fact  having  no  connection  with 
the  proceedings  of  the  body,  as  that  at  the  time  he  sat  with  the 
body  he  was  an  alien.     Raganthali  v.  State,  14  Bush,  457. 


§  704.]         TESTIMONY  OF  GRAND  JUROR.  74l 

were  expressed  by  various  members  of  the  body.  In 
respect  of  such  matters  the  injunction  of  secrecy  may  well 
be  perpetual.^ 

§  704.  Testimony  of  Grand  Jnror  to  show  what  Avas 
the  Finding-. — An  indictment,  verified  by  the  attestation  of 
the  foreman  of  the  grand  jury,  that  it  is  a  true  bill,  and  as 
such  presented  to  the  court,  and  ordered  to  l)e  put  on  file, 
becomes  a  matter  of  record,  and  furnishes  the  appropriate 
evidence  that  the  finding  was  concurred  in  by  the  legal 
number.^  Nevertheless,  the  court  has  power  to  vacate,  or 
to  cause  to  be  amended,  a  record  which  has  been  erroneously 
or  falsely  made,  by  inadvertence  or  otherwise,  by  any  of  its 
officers.  Accordingly,  it  is  held  that  it  may  be  shown  at 
any  time  during  the  progress  of  the  case,  that  less  than 
twelve  concurred  in  the  finding  of  a  bill,  and  that,  too,  bj^ 
the  aflidavits  of  the  jurors  themselves.^  "The  fact"  said 
Weston,  J.,  "  whether  twelve  or  more  concurred  or  not  in 
the  bill,  is  not  a  secret.  It  is  a  result  which  they  are  re- 
quired, through  their  organ,  the  foreman,  to  make  known  ; 
and  it  is  of  the  deepest  importance  to  the  public  and  to  the 
accused  that  it  should  be  truly  disclosed."* 

But  all  courts  do  not  recognize  such  a  necessity.  In  the 
view  of  some,  the  same  reasons  for  refusing  to  allow  a  petit 

1  State  V.  Broughton,  7Ired.  L.  96,  98;  State  v.  Baltimore,  etc.  R.  Co., 
15  W.  Va.  382;  Huidekoper  v.  Cottou,  3  Watts,  56;  Gordon  v.  Com.,  92 
Pa.  St.  216;  s.  c.  1  Crim.  L.  Mag.  583;  United  States  v.  Farrington  (IJ . 
S.  Dist.  Ct.,  Northern  Dist.  N.  Y.  1881,  Wallace,  D.  J.);  2  Crim.  L. 
Mag.  525,  529.  See  also  upon  this  point,  Comp.  L.  Kan.  1879,  §  4584; 
Bullitt's  Ky.  Cr.  Code,  §  112;  R.  S.  Me.  1871,  ch.  134,  §  8;  G.  S.  Mass. 
1860,  ch.  171,  §  13;  Comp.  L.  Mich.  1871,  §  7891;  2  Stat,  at  Large  Minn. 
1873,  p.  1037,  §115;  R.  S.  Mo.  1879,  §  1792;  Comp.  L.  Neb.  1881,  p.  727, 
§  407;  Comp.  L.  Nev.  1873,  §  1838;  R.  S.  Ohio,  1880,  §  7205;  Laws  Utah, 
1878,  §  141 ;  R.  S.  Wis.  1878,  §  2554. 

•^  Ante,  §  666. 

3  An  irregularlt}^  in  this  respect,  becomes  a  subject  of  inquiry  upon  a 
suggestion  to  the  court.  No  averrment  to  the  contrary  of  the  record  can 
be  admitted  as  a  formal  plea.  Com.  v.  Smith,  9  Mass.  109, 110;  Sparren- 
berger  v.  State,  53  Ala.  481.  486. 

^  Low's  Case,  4  Me.  439,  446.  See  also.  People  v.  Shattuck,  6  Abb.  N. 
C.  33;  Sparrenberger  v.  State,  53  Ala.  481,  486;  State  v.  Ilorton,  63  N. 
C.  595;  Cherry  v.  State.  6  Fla.  679,  683. 


742  OBLIGATION  OF  SECRECY.  [cil.  XXXIII. 

juror  to  impeach  his  verdict,  by  un  affidavit  to  the  effect 
that  he  did  not  assent  thereto,  apply  with  equal  force  in  this 
case.^  By  such  courts,  therefore,  grand  jurors  will  not  be 
permitted  to  testify  whether  they  voted  at  all,  how  they  or 
their  compsinions  voted,  or  whether  twelve  concurred  in  the 
finding.  "An  innocent  person"  said  Kyland,  J.,  "  will  not 
be  hurt  by  refusing  to  go  behind  the  indictment  and  see 
how  it  was  found,  for  he  can  always  vindicate  himself  in  a 
trial  upon  the  merits.^ 

§  705.  To  show  who  was  the  Prosecutor. — It  seems  to 
have  been  first  decided  by  Lord  Kenyon,  that  a  grand  juror 
might  be  called  to  testify  as  to  who  was  the  prosecutor  upon 
an  indictment,  in  order  that  he  might  be  held  liable  for 
maliciously  procuring  it.^  Later,  this  became  the  established 
practice.* 

§  706.  To  show  who  were  the  Witnesses  and  their 
Testimony.'^ — (1.)  In  General. — In  Scarltt's  Case  the  jus- 
tices, suspecthig  a  conspiracy,  from  the  fact  that  many  repu- 
table persons  had  been  indicted,  "  demanded  of  them  of  the^ 
inquest  what  evidence  they  had  to  find  the  said  bills,  and  they 
answered,  by  the  testimony  and  cognizance  of  one  of  them- 
selves, .sc?7.  of  liohert  Scarlet.''  The  authority  of  this  case 
upon  this  i)oint,  curiously  enough,  seems  lo  have  been  gen- 
erally lost  sight  of.  It  is  an  explicit  recognition  of  the 
right  of  the  court  to  inquire  into  the  proceedings  of  the 
grand  jury,  when  this  step  becomes  necessarv.  The  circum- 
stance that  the  grand  jury  were  not  at  the  time  discharged 
would  seem  to  make  no  difference.     This  principle  was  later 

1  Rex  V.  Marsh,  6  Ad.  &  E.  23G. 

2  State  V.  Baker.  20  Mo.  338;  State  v.  Wammack.  70  Mo.  410.  See  also 
Watts  V.  Territory,  1  Wash.  T.  (N.  S.)  409;  Creek  v.  State,  24  Ind.  151; 
State  V.  Gibbs,  39  Iowa,  318;  State  v.  Davis,  41  Iowa,  311;  State  v. 
Mewherter,  46  Iowa,  88;  State  v.  Oxford,  30  Tex.  428:  State  v.  Hamlin, 
47  Conn.  95. 

3  Sykes  v.  Dunbar,  Selvvyn's  N.  P.  1091. 

*  Freeman  v.  Arkell,  1  Car.  &  P.  135.  See  Iliiidekoper  v.  Cotton,  3 
Watts,  56.  As  to  indorsement  of  prosecutor's  name  upon  the  indictment,, 
see  ante^  §  683. 

^  As  to  the  indorsement  of  names  of  witnesses  upon  the  indictment,, 
see  ante,  §  684. 


§    706.]         TO  SHOW  THE  TESTIMONY  BEFORE  THEM.  743 

overlooked  in  briefly  reported  cases,^  but  was  reasserted  by 
Lord  Ellenborough,  though  less  positively  than  could 
have  been  wished,  upon  the  trial  of-  Watson  for  high 
treason  in  1817.^ 

(2.)  Upon  an  Indictment  for  Perjury  before  the  Gra  d 
Jury. —  It  is  clear  that  the  only  convenient  means  of  con- 
victing one  for  perjury  in  giving  testimony  before  the  grand 
jury,  is  the  testimony  of  the  grand  jurors  themselves  as  to 
what  the  witness  there  testified.  It  is  a  curious  circum- 
stance that  the  early  authorities  show  no  instance  of  an 
indictment  for  perjury  before  the  grand  jury.  In  1846,  it 
was  said  by  Ruffin,  C.  J.  :  "  We  have  not  found  in  the 
books  an  instance  of  an  indictment  for  a  perjury  before  a 
grand  jury,  and  the  text  writers  leave  it  doubtful  how  far 
in  principle,  as  they  understand  it,  it  is  competent  to  prove 
what  evidence  was  given  before  the  grand  jury."*  In  his 
edition  of  Blackstone's  Commentaries,  Mr.  Christian  notes 
an  occasion  at  nisi  prius,  on  which  a  Avitness,  after  giving 
his  testimony  upon  the  trial  of  a  prisoner,  was  committed  to 
be  tried  for  perjury,  upon  the  statement  of  one  of  the  grand 
jury  by  whom  the  indictment  was  found  (and  who  happened 
to  be  present),  that  the  testimony  contradicted  that  which 
he  had  given  liefore  the  grand  jury.^  Upon  the  trial  of 
such  an  indictment  at  nisi  prius,  in  1841,  Chief  Justice 
TiNDAL  seems  to  have  felt  the  necessity  of  calling  some  per- 
son, other  than  a  grand  juror,  —  hi  the  particular  case  a 
police  oflicer  who  had  been  stationed  within  the  grand  jury 
room  —  to  show  what  the  defendant's  testimony  before  the 
grand  jury  had  been.'' 

The  courts  of  this  country  have  uniformly  had  no  scruples 
upon  this  point.  "It  is  obvious,"  said  Kuffin,  C.  J., 
*'  that,  if  grand  jurors  are,  through  all  time  and  to  all  pur- 

1 12  Co.  Kep.  98. 

2Ld.  Moliun's,  1  Salk.  104;  Anon.    Clayt.  84,  pi.  14,  cited  also  in  12 
Vln.  Abr.  20,  tit.  Evidence  H. 
3  32  How.  St.  Tr.  1. 

*  State  V.  Broughton,  7  Ired.  L.  96,  99. 
s  4  BI.  Com.  126,  note. 
«  Keg.  V.  Hughes,  1  Car.  &  K.  519. 


744  OBLIGATION  OF  SECUECV.  [CM.   XXXIII. 

posc!?,  prohibited  from  disclosing  and  proving  the  testimony 
of  witnesses  before  them,  there  is  a  perfect  exemption  from 
temporal  penalties  of  perjury  before  a  grand  jury.  The 
consequences  of  such  a  doctrine  would  be  alarming  ;  for, 
besides  the  danger  of  tempting  the  witnesses  to  commit  so 
great  a  crime  without  the  fear  of  punishment,  grand  jurors 
would  have  no  credible  evidence  on  which  to  act,  on  the  one 
hand,  and  the  citizen,  on  the  other,  would  be  deprived  of 
one  of  his  most  boasted  and  valuable  protections  against 
arbitrary  accusations  and  arrests.  It  would  be  extraordi- 
nary, were  Avitnesses  thus  enabled  to  perjure  themselves 
without  responsibility."  ^  The  rule  is  firmly  estal)lished  by 
the  decisions,-  and  in  many  States  b}^  the  statutes,^  that  in 
such  a  case  any  one  of  the  body  is  l)ound  to  give  testimony 
as  to  what  was  testified  to  before  the  grand  jury. 

(3.  )  To  Contradict  a  Witness. — Upon  the  same  principle, 
and  for  the  further  reason  that  an  exclusion  of  the  testi- 
mony of  the  grand  juror  might  result  in  depriving  a  party 
of  important  evidence  essential  to  his  defence,  a  grand 
juror  may  be  called  to  show  that  the  testimony  of  a  witness 
is  in  contradiction  of  that  previously  given  by  him  before 
the  grand  jury,  and  the  statutes  just  noticed  expressly  so 
provide.^     Moreover,  in  the  view  of  some  courts,  the  grand 

1  State  V.  Bioughtoii.  7  Ired.  L.  96,  99. 

2  State  V.  Fasset,  16  Conn.  468;  Crocker  v.  State,  Meij^s,  127;  Jones  v. 
Turpia,  6  Ileisk.  181,  184;  People  v.  Hnlbut,  4  Den.  133,  135;  United 
States  V.  Reed,  2  Blatch.  435,  466;  People  v.  Young,  31  Cal.  563.  One 
may  be  indicted  for  swearing  falsely  before  the  grand  jury.  State  v. 
Offutt,  4  Blackf.  355;  Thomas  v.  Com.,  2  Rob.  Va.  795.  The  words, 
"  you  swore  to  a  lie  before  the  grand  jury,"  are  actionable.  Perselly  v. 
Bacon,  20  Mo.  330. 

3  Code  Ala.  1876,  §  4780;  Cal.  Penal  Code,  §  926;  Ark.  Dig.  Stat.  1874, 
§  1764;  Code  Ga.  1873,  §  3915;  Miller's  R.  C.  Iowa,  1880,  §4283;  Bullitt's 
Ky.  Cr.  Code,  §  113;  Comp.  L.  Mich.  1871,  §  7891;  R.  S.  Mo.  1879, 
§1791;  Comp.  L.  Nev.  1873,  §  1839;  New  York  Code  Crira.  Proc.  1881, 
§  266 ;  R.  S.  Ohio,  1880,  §  7191 ;  Stat.  Tenn.  1871,  §  5084 ;  Tex.  Code  Cr.  Proc. 
1879,  §384;  Gen.  Laws  Oreg.  1872,  p.  347,  §  58;  R.  S.  Wis.  1878,  §  2555. 
See  also  Comp.  L.  Ariz.  1877,  §  608;  Gen.  Laws  New  Mexico,  1880,  p. 
371,  §  14;  Laws  Utah,  1878  (Code  Cr.  Proc),  §  140. 

*  Com.  V.  Mead.  12  Gray,  167;  Jones  v.  Turpin,  6  Heisk.  181;  State  v. 
Fasset,  16  Conn.  468;  State  v.  Wood,  53  X.  H.  484;  People  v.  Ilulbut, 


§  706.]       TO  snow  the  testimony  before  them.  745 

juror's  testimony  is  not  restricted  to  the  single  occasion  of 
the  trial  of  the  indictment,  to  the  finding  of  which  the  wit- 
ness's testimony  contributed.  His  testimony  may  be  intro- 
duced for  the  purpose  noted,  upon  the  trial  of  a  different 
indictment,^  or  a  civil  action  connected  with  the  same  subject 
matter."-  All  courts,  however,  do  not  concede  this  to  be  a 
correct  view  of  the  law.'^  Where  the  statutes  prescribe  the 
cases  in  which  a  grand  juror  may  testifj',  it  is  hekl,  too,  that 
they  can  do  so  in  no  other.* 

(4.)  To  confirm  a  Witneas. —  Upon  the  same  principle, 
when  a  witness  is  impeached,  the  testimony  of  a  grand  juror 
is  admissible,  to  show  that  the  witness  testified  before  the 
grand  jury  to  the  same  effect.'^ 

(5.)  To  shoiv  that  the  Flndhig  ivas  based  iipoii  In- 
<:ompetent  Testimoni/. —  In  a  former  chapter,  we  have 
shown  that,  while  courts  generally  will  refuse  to  quash  an 
indictment  because  some  of  the  testimony  upon  which  it 
was  found  is  incompetent,  some  will  quash  the  indictment 
when  there  is  no  legal  evidence  whatever  to  support  it ; 
others,  however,  will  permit  no  inquiry  upon  the  subject." 
While  witholding  our  approval  from  the  latter  class  of   de- 


4  Den.  133,  135;  United  States  v.  Reed,  2  Blatch.  435,  46G.  See  also 
Little  V.  Com.  25  Gratt.  921,  931.  To  lay  the  foundation  for  a  contradic- 
tion of  a  witness,  he  may  be  asked  whether  he  has  not  testitied  to  certain 
facts  before  the  grand  j^uy.  Reg.  v.  Gibson,!  Car.  &  M.  672;  Jones  v. 
Tm-pin,  G  Heislv.  181,  185;  Burdick  v.  Hunt,  43Ind.  381;  Gordon  v.  Com., 
02  Pa.  St.  216;  s.  c,  1  Crim.  L.  Mag.  583. 

1  Gordon  v.  Com.,  92  Pa.  St.  216;  s.  c,  1  Crim.  L.  Mag.  583. 

2  Burdick  v.  Hunt,  43  Ind.  381;  Buraltam  v.  Hattield,  5  Blackf.  21 ; 
Jones  V.  Turpin,  6  Heisk.  181 ;  Sands  v.  Robison,  12  Smed.  &  M.  701; 
Huidekoper  v.  Cotton,  3  Watts,  56.  See  also  Way  v.  Butterworth,  106 
Mass.  75. 

3  Imlay  v.  Rogers,  7  X.  J.  L.  347. 

*  Spratt  V.  State,  8  Mo.  247;  Tindle  v.  Nichols,  20  Mo.  326;  Beam  v. 
Link,  27  Mo.  261 ;  State  v.  Glbbs,  39  Iowa,  318;  State  v.  Beebe,  17  Minn. 
241;  Be  Pinuey,  27  Minn.  281;  State  v.  Hamilton,  13  Nev.  886. 

5  Perkins  v.  State,  4  Ind.  222;  People  v.  Hulbut,  4  Den.  133,  135. 

«  Ante,  §  642.  In  addition  to  cases  there  cited,  see  State  v.  Grady,  MS., 
St.  Louis  Court  of  Appeals,  June,  1882,  to  the  effect  that  grand  jurors 
may  be  examined  to  sliow  tluit  an  indictment  was  returned  by  them 
without  hearing  anj-  evidence. 

(48) 


74t)  OHLIGATIOX  OF  SECllECV.  [CII.   XXXUU 

c'isioiis,  it  i^5  pro[)cr  in  this  connection  to  stale  the  grounds 
upon  which  they  rest.  On  one  occasion,  these  were  stated 
by  a  court  of  hiiih  authority  as  follows  :  "  The  rc-exami- 
nation  and  revision  of  the  evidence  before  them,  attempted 
to  be  established  by  ex  ^;«)'^e  statements,  and  upon  the 
allegation  of  information  and  belief  by  interested  parties, 
would  necessarily  lead  to  abuses  in  the  administration 
of  criminal  justice,  besides  involving  it  in  endless  and 
profitless  litigation.  It  presupposes  improper,  if  not 
dishonest  conduct  in  the  members  constituting  the  body, 
and  seeks  to  establish  the  fact  in  this  loose  and  im- 
perfect mode  of  arriving  at  the  truth,  and  under  cir- 
cumstances in  which  the  jurors  themselves  are  precluded 
from  vindicating  their  proceedings."^  For  the  same  rea- 
sons, the  Supreme  Court  of  New  York  held  that,  after 
pleading  to  an  indictment  which  charged  five  offenses,  in 
separate  counts,  the  defendant  could  not,  in  order  to  limit 
the  proof  to  a  single  count,  show  by  one  of  the  grand  jury 
that  only  one  offense  Avas  sworn  to  before  that  body.- 

(6.)  To  establish  other  Facts. —  In  a  well  considered 
case,  to  w'hich  we  have  made  frequent  allusion,  it  was  held 
that  a  grand  juror  might  be  examined  as  a  witness,  to  prove 
that  a  person,  indicted  for  a  crime,  appeared  before  the 
grand  jury  which  had  the  matter  under  consideration,  and 
there  manifested  great  anxiety  to  fasten  the  charge  upon 
another.-^  Likewise,  one  of  the  grand  jury  which  found  an 
indictment  is  competent  to  testify  upon  the  trial,  that 
a  certain  person  w^as  not  examined  as  a  witness  before  the 
grand  jury ;  *  also  as  to  what  the  defendant  stated  and  con- 
fessed before  the  grand  jury.^ 

1  United  States  v.  Eeed,  2Blatclif.  435, 4G6. 

2  People  V.  Hulbut,  4  Den.  133,  135.  Seealso  State  v.  Logan.  1  Xev. 
509. 

3  State  V.  Broughtou,  7  Ired.  L.  !)G. 

*  Com.  V.  Hill,  11  Cush.  137.  But  .see  State  v.  Beebe,  17  Minn.  241 ; 
State  V.  Hamilton,  13  Xev.  3SG. 

'  United  States  v.  Porter,  2  Crancli  C.  C.  (30;  United  States  v.  Charles^ 
2  Craneli  C.  C.  76.  See  also  Burnbam  v.  Hattield,  5  Blackf.  21.  Testi- 
mony to  prove  a  confession,  alleojed  to  bavc  been  made  by  a  defendant 


§    707.]  TESTIMOXY  OF  OTHERS  TO  SHOW  TUOCEEDINGS.  747 

§  707.  Te.stinioiiy  of  Others  than  Grand  Jurors  to  show 
Proceedings. — It  would  seem  clear  that  the  same  obligation 
of  secresy  which  the  law  imposes  upon  grand  jurors,  prop- 
erly extends  to  those  persons  whose  presence  is  required  by 
the  <2:rand  jury  for  the  convenient  discharge  of  their  duties. 
Thus,  neither  the  clerk  of  the  grand  jur}',^  nor  the  county 
attorney,-  nor  any  of  the  witnesses  l)efore  that  body  can 
testify  or  give  any  information  relative  to  its  proceedings, 
which  the  grand  jurors  themselves  could  not  give.'  But  Chief 
Justice  TiNDAL,  in  a  trial  at  nisi  prius,  where  he  dou])ted 
his  right  to  call  a  grand  juror  to  testify,  which  he  clearly 
might  have  done,  the  charge  being  perjury  before  the  grand 
jury,*  determined  "  for  the  purposes  of  public  justice,"  to 
receive  the  evidence  of  a  police  officer  who  was  stationed 
within  the  grand  jury  room.'  There  can  be  no  douljt  that 
when  it  is  proper  to  call  a  grand  juror  to  testify  as 
to  the  proceedings  of  the  body,  any  other  person  who  was 
present  and  cognizant  of  the  facts  to  be  elicited,  may  also 
testify  thereto.'^ 

-while  under  exaniinatioii  before  the  grand  jury,  should  be  received  with 
■great  caution,  and  rejected,  unless  it  satisfactorily  appears  that  the  con- 
fession was  deliberately  and  voluntarily  made,  and  not  through  inadvert- 
ence, or  from  the  supposed  consti'aint  of  his  position,  or  from  the  obli- 
gation of  his  oath.  United  States  v.  Brown.  1  Sawy.  531,  537. 
1  Beam  v.  Link.  27  Mo.  261. 

*  McLellan  v.  Richardson,  13  Me.  82. 
3  State  V.  Fasset,  16  Conn.  470,  471. 

^  Ante,  §  706,  subsec.  2. 

*  Reg.  V.  Hughes,  1  Car.  &  Kir.  510.    See  also  Little  v.  Com.,  25  Gratt. 

m\. 

*  state  V.  Van  Buskirk,  59  Tnd.  384;  Knott  v.  Sargent.  125  Mass.  95; 
Unitetl  States  v.  Farrington,  5  Fed.  Rep.  343:  s.  r.,  2  Crim.  L.  Mag.  525. 


748  I'KitSUNAL   I.IAIULirV   ()!•  (iUANl)  .11  IJOliS.  [CH.XXXIV^ 


CIIAPTKK   XXXIV. 


OF  TiiK  i'i;i;so.\Ai,  i.iAi'.iLiii  (»i"  (;i;aM)  ii  i;oi;s. 

i^ECTION. 

710.  Early  Authorities  :is  to. 

711.  Absolute  Immunity  wirhiu  the  S[jliore  of  tlieii-  I)\itie?!. 

§  710.  Karly  Authorities  as  to. —  That  the  grand  jury  is- 
frequently  u.sed  as  a  convenient  means  of  oppression,  can- 
not be  doubted.  That  an  effort  should  be  made  to  hold  the 
faithless  juror  to  account  in  some  form  of  action,  is  but  the 
natural  expression  of  the  maxim,  that  "  for  every  wrong 
there  ought  to  be  a  reined}'."  ^  But  it  seems  that  wrongs 
wrought  l)y  malice  of  this  body,  or  members  thereof,  are 
generally  remediless.  The  common  law  is  exi)licit  upon  this 
point.'-  As  stated  in  a  leading  case,^  when  a  grand  inquest 
indicts  one  of  murder  or  felony,  after  the  party  is  acquitted ^ 
no  writ  of  conspiracy  lies  for  him  Avho  is  acquitted  against 
the  indictors,  because  their  service  is  compulsory ;  and 
further,  they  being  sworn  to  speak  the  truth,  "  the  law  will 
not  sui)pose  any  unindifferent  when  he  is  sworn  to  serve  the 
Ivins:."  For  the  forciioino- reasons,  Lord  Hale  states  the 
rule  to  be,  that  the  indictors  are  presumed  in  law  to  be  in- 
different, vjiless  the  contrart/  ai^pear.^  But  suppose  the 
contrary  to  ai)pear ;  that  the  juror  maliciously  caused  the 
accused  to  be  indicted.  Although  this  may  avail  to  abate  the- 
indictment,  it  can  afford  no  ground  for  a  civil  action  against 

'  Fonblaii(|ue  Eq.  jIOO;  Id..  4tli  Am.  ed.  G07. 

2  1  Chitty  (J.  L.  32:5,  ;{24. 

3  Floyd  and  Barker's  Case.  \i  Co.  Rep.  2;^. 
^  2  Hale  P.  C.  1(;2. 


§    711.]  ABSOLUTE  IMMUNITY.  749 

the  juror. ^  The  case  in  Coke  says,  even  that  "  the  law  pre- 
sumes that  every  juror  will  be  indifferent  when  he  is  sworn, 
nor  Avill  the  law  admit  proof  against  this  presumption." 
This  and  other  authorities  are  explicit  also  to  the  effect  that 
no  attaint  lies  against  a  juror  at  the  suit  of  the  King  or 
subject.'- 

§  711.  Absolute  Iiiimimity  Avitliin  the  Sphere  of  their 
Duties. —  These  cases  seem  fully  to  sustain  the  rule  as 
stated  in  an  authoritative  treatise  on  criminal  law  :  "  During 
the  whole  of  their  proceedings,  the  grand  jury  are  protected 
in  the  discharge  of  their  duty,  and  no  action  or  prosecution 
can  be  supported  against  them  in  consequence  of  their  find- 
ing, however  it  may  be  dictated  by  malice,  or  destitute  of 
probable  foundation."'^  The  same  rule  prevails  in  this 
country.  In  the  celebrated  charge  of  King,  J.,  it  was  said 
by  this  learned  judge  that  "  the  grand  jury  are  entirely 
irresponsible,  either  to  the  public  or  to  individuals 
ao;o;rieved — the  law  givinir  them  the  most  absolute  and  un- 
qualitied  indemnity  for  such  an  ofhcial  act;"*  and  again, 
"  when  the  official  existence  of  a  grand  jury  terminates, 
they  mingle  again  with  the  general  mass  of  the  citizens,  in- 
tangible for  any  of  their  official  acts,  either  by  private 
action,   public  prosecution,   or  legislative   impeachment."  '^ 

>  Stowball  V.  Aiisell,  Comb.  UC>. 

2  See  also  Johnstone  v.Sntton.  1  Term  Hep.  5;3.);  Gorenwelt  v.  Biirwell, 
1  Ld.  Raym.  469. 

3  1  Chitty  Cr.  L.  323,  324.  This  is  merely  an  illustration  of  that 
rule  of  public  policy  which  prohibits  the  questioning  of  judicial  and 
other  public  officers  by  private  citizens  in  a  court  of  law  as  to  the  per- 
formance of  their  duties.  Thus,  in  another  connection,  Mr.  Chittj^says : 
'•  Xor  can  an  action  be  maintained  against  a  juryman,  or  the  attorney- 
general,  or  a  superior  military  or  naval  officer,  for  an  act  done  in  the 
execution  of  his  office,  and  within  the  purview  of  his  general  authority." 
1  Chitty  PI.  90. 

■*  Be  Lloyd  and  Carpenter,  5  Penn.  L.  J.  GO;  s.  c,  3  Clark,  193. 

^  5  Penn.  L.  J.  (53 ;  3  Clark,  196.  See  also  Turpen  v.  Booth,  56  Cal.  65 ; 
.s.  c,  2  Cr.  L.  Mag.  63;  23  Alb.  L.  J.  218;  Hunter  v.  Mathis,  40  lud. 
357.  What  act  will  be  regarded  as  "official"  is  a  nice  question. 
The  Supreme  Court  of  the  United  States  makes  a  distinction  between 
acts  in  excess  of  jurisdiction  and  such  as  are  done  in  the  clear  absence  of 
all  jurisdiction  over  the  subject  matter.     See  Bradley  v.  Fisher.  13  Wall. 


750  I'EKSOXAL  LIAP.ILITV  OF  GRAND  .7UHORS.  \_CU .  \XXIV. 

This  rule  has  l>etMi  fornudatcd  into  a  statutory  provision  in 
inanv  States,  For  example,  the  \c\v  York  Code  of  Crim- 
inal Procedure'  ]>rovides  that  "  a  urand  juror  shall  not  be 
questioned  for  anything  he  may  say,  or  any  vote  lie  may 
irive  in  the  grand  jury,  relative  to  a  matter  legally  pending 
l)efore  the  jury,  oxcejit  for  a  perjury  of  which  he  may  have 
])een  guilty  in  making  an  accusation  or  in  giving  testimony 
to  his  fellow  jurors."  - 

:535.  Tliis  (listiiu'tion  was  not  observed  in  AVeavcr  v.  Devpudorf,  :5  Den. 
117, 120. 

iLawsl8Sl,oli.  44-2. 

2  Section  2G7.  See  also  Cal.  Tenal  Code,  §  927';  Ark.  Dig.  Stat.  1874, 
§  17G5;  Miller's  R.  C.  Iowa.  1880,  §  428G;  Bullitt's  Ky.  Or.  Code,  §114; 
2  Stat,  at  Large  Minn.  1873,  p.  1037,  §  117;  Comp.  I..  Nev.  1S73,  §  1840; 
Gen.  Laws  Oreg.  1873,  p.  347,  §  59;  Comp.  L.  Ariz.  1877,  §  009;  Gen. 
Laws  Xew  Mexico.  1880,  p.  371,  §  15;  Laws  Utah,  1878.  (Code  Cr.  Proc). 
vj  142.  In  Georgia  grand  jurors  are  exempt  from  actions  for  malicious 
prosecution  for  presentments  whicli  tliey  may  make.  Code  Ga.  1873, 
^  2985. 


INDEX. 


j8®-  The  tig-ureis  refer  to  sections  and  subsections.    The  parentliesis  indicate- 
the  latter. 


AB^iNDOXMENT.    See  Waiver. 

,VBATEMENT.    See  Plea  in  Abatement. 

ACCUSED  PERSONS.    See  SERVICE  of  Panel  upon  the  Accused. 

ACTUAL  BIAS.    See  Challenges  for  Cause. 

legislature  cannot  take  away  this  cause  of  challenge,  175. 

trial  of  challenge  for,  249. 

ADJOUKXJIEKT. 

distinction  between  power  to  permit   jury  to  separate  and  power  to  ad- 
journ, 311. 
.\_FFIDAVITS  OF  JURORS. 

in  support  of  their  competency,  304. 

juror's  affidavit  to  show  separation  from  his  fellows  for  an  innocent  purpose, 

318  (9),  330,  340  (1),  341  (1),  341  (2). 
affidavits  explaining  separation  must  exclude  every  possibility  of  prejudice 

to  prisoner,  329,  341  (1). 
admissible  to  show  communications  between  jurors  and  bailiff,  362  (4). 
whether  admissible  to  show  unlawful  communications  between  jurors  injury 

room,  363. 
if  admissible,  such  affidavits  must  be  voluntary,  303. 
admissible  to  show  attempts  to  corruptly  influence  the  jury,  3G4  (6). 
inadmissible  to  show  that  the  jury  read  improper  matter  in  jury  room,  391  (4) 

note,  400  note, 
admissible  to    show  that  improper  papers  in  jury  room  were  not  read  by 

them,  390. 
inadmissible  to  show  what  eflfect  tbe  papers,  when  read,  had  upon  them,  397. 
generally  inadmissible  to  show  misconduct  of  jury  in  making  up  a  chance 

verdict,  414. 
exception  in  Tennessee  and  Kansas,  ib. 

admissible  to  show  that  they  did  not  return  a  chance  verdict,  ib. 
admissible  under  statutes  to  show  chance  verdict,  415,  454,  455. 
such  affidavits  miist  be  voluntary,  ib. 
generally  not  admissible  to  impeach  their  verdict,  440. 
to  show  that  the  affiant  did  not  consent  to  the  verdict,  441. 
to  show  that  the  jury  had  not  in  fact  agreed  upon  the  verdict,  442. 
admissible  to  show  mistake  in  entering  the  verdict,  443. 
court  may  interrogate  jurors  as  to  the  grounds  of  their  linding,  444. 
testimony  of  ethers  on  information  derived  from  jurors  inadmissible,  445. 
admissible  to  sustain  their  verdict,  440. 
admissible  to  show  what  took  place  in  open  court,  447,  450. 


752  INDEX. 

AFFIDAVITS  OF  JL'KORS  -  Conlinucd. 

iichulssible  to  show  iniseonduct  of  parties,  US. 

wbetlier  admissible  to  show  uiiscouduct  of  their  bailiff,  ;502  (4),  44!). 

or  upon  the  <iuestion  of  the  juror's  competency,  4.50. 

admissible  in  Tennessee  to  sliow  their  own  misconduct,  4.'")1. 

a  tendency  of  late  to  limit  this  rule,  ih. 

exceptional  rule  in  Iowa,  4.t2. 
under  the  Code  of  1*51 ,  4.52  (1). 
subsequent  to  the  revision  of  1800,  4.52  (2). 

the  Iowa  rule  followed  in  Kansas,  4.5?. 

statutory  chanj^es  in  oHier  States,  4,54,  4.55. 

admissible  to  show  misconduct  ot  juror  in  presence  of  court,  4.50. 
AL1EN.S.    See  JiTRY  de  Mkdietate  LixGU-ii;  Challenges  for  Cause. 

^VMENDMENT. 

of  sheriff's  return  to  show  service  of  panel  upon  the  accused,  121. 
of  sheriff's  return  upon  summoninfi;  of  yrand  jurors,  560. 
of  pleadinsjs  and  re-swearing  of  jury,  292. 

APPELLATE  COURTS. 

will  not  hear  objections  to  manner  of  iuipanelling  for  the  first  time,  5  note, 

278,  297. 
will  presume  that  order  for  a  venire  issued,  72. 

will  not  hear  objections  to  regularity  of  order  for  venire,  for  the  first  time,  73. 
will  not  review  finding  of  fact  by  trial  court  upon  a  challenge  to  the  array, 

144  (1). 
revisory  power  over  decisions  of  trial  court  upon  challenges  to  be  cautiously 

exercised,  2.52. 
to  be  guided  by  what  evidence  in  such  cases,  266. 
will  not  impute  improper  motives  to  sheriff  who  has  excused  a  portion  of 

the  panel  from  attendance,  2.59  (1)  note, 
order  of  court  refusing  new  trial  on  conflicting  evidence  will  not  be  set 

aside,  304. 
whether  order  of  trial  court  granting  or  refusing  a  new  trial  will  be  reversed, 

430,  431,  432. 
how  revised  where  new  trial  has  been  granted,  432. 
mode  in  which  this  discretion  is  revised,  433. 
how  facts  constituting  ground  for  new  trial  are  brought  to  the  attention  of, 

434. 
by  a  conclusive  finding  of  fact  in  the  court  below,  434  (1). 
by  affidavits  embodied  in  the  bill  of  exceptions,  434  (2). 
will  presume  that  the  .iccused  was  held  to  answer  at  the  time  of  impanelling 

of  grand  jury,  .545  note, 
objection  cannot  be  taken  in  that  inuictmont  is  not  duly  indorsed,  674. 

ARRAY.    See  Challenge  TO  THE  Array. 
defined,  129  and  note. 

ATTORNEY. 

act  ot  binds  his  client,  12  note. 

knowledge  of  binds  client,  275  (2),  351,  383  (5). 

consent  of  to  separation  of  jurors  in  criminal  cases  does  not  in  Texas,  339. 

otherwise  in  California,  338. 

passive  acquiescence  does  not  always  amount  to  consent,  3.59. 

but  generally  does,  350,  351,  3S3  (5),  398,  427,  456. 

handing  papers  secretlj'  to  jurj%  364  (5),  393. 

otherwise  tampering  with  jury,  364  (8). 

entertainment  of  jurors  and  their  horses  by  attorney  of  successful  party, 

372  (2). 
intoxicating  liquor  furnished  jury  by,  373  (2)  note,  378  (5). 
notes  of  counsel  cannot  be  taken  to  jui'y-room,  395. 
may  waive  right  of  challenging  grand  jurors,  545  note. 


INDEX.  753 

aJAILIFF. 

communications  between  and  jury  in  jury  room,  3(!2. 

presence  of  in  grand  jury  room,  63'2. 

whether  testimony  of  jurors  admissible  to  show  misconduct  of,  3(5-2  (4), 44'.). 

BALLOTS. 

preparation  of  for  jury  box,  45,  55. 

15IAS.    See  Cii-vi.lexges  i-ou  Cause. 
niLL  OF  EXCEPTIOX.s. 

must  show  facts  relied  on  in  support  of  challenge,  294  note, 
in  a  former  trial  of  tlie  same  cause  cannot  be  taken  to  jury  room,  .383  (1)  note. 
BODY  OF  COUNTY. 

wliat  will  be  regarded  as  a  talving  from,  SI. 
BOOKS  AND  PAPERS  IN  THE  JURY  ROO.M.    See  Xewspai'EHs. 

unlawful  delivery  of  papers  to  jury  bj'  a  party,  his  counsel  or  any  one  for 

him,  3(;4  (5). 
under  the  old  law  instruments  under  seal  only  could  be  given  to  jury,  3S1. 
sworn  copies,  though  in  evidence,  could  not  be  taken  out  by  jury,  381. 
the  fallacy  of  this  distinction  pointed  out,  381. 
not  error  to  allow  documents  not  under  seal  to  be  taken  out  by  jury,  33}  (;). 

a  contrary  rule  in  I'ldiani,  383  (2). 
not  error  to  refuse  to  send  out  such  docum(>nts,  3S3  (3). 
records  of  former  suits  or  proceedings,  383  (4). 
record  must  be  complete,  383  (8). 
Ijapers  written  upon  and  underscored,  3S3  (5). 
duty  of  counsel  to  object  knowin;.?  of  improper  paper  going  to  jur^-  room, 

383  (5). 
papers  which  may  be  used  in  ijroving  handwriting  by  comparison,  383  ((i). 
instruments  used  in  the  commission  of  crime  may  be  taken  out  by  jury 

when  properly  identifltd,  383  (7),  416  note, 
papers  which  are  evidence  on  one  side  only,  384. 
.as  to  depositions,  385. 

depositions  did  not  formerly  go  to  jury  room,  385  (1). 

proper  to  allow  them  to  be  taken  out  when  all  the  evidence  is  in  this  form, 

385  (1). 
court  may,  in  its  discretion,  grant  or  refuse  permission,  335  (2). 
how  when  taken  out  without  permission,  385  (2). 

how  when  taken  out  contrary  to  provisions  of  a  statute,  385  (2)  and  (3) . 
in  Ohio  error  may  be  assigned  for  refusal  to  allow  depositions  to  be  taken 

out,  385  (2). 
depositions,  parts  of  which  are  not  evidence,  must  not  be  taken  out, 
385  (4). 
papers  not  received  in  evidence  cannot  be  taken  out,  38(). 
statements  of  account,  386  (1)  note, 
bill  or  exceptions  on  former  trial,  ib. 
record  of  coroner's  inquest  and  depositions,  iii. 
county  map,  ib. 
bills  of  particulars,  statements  of  claims,  computations,  etc.,  may  be  taken 

out  for  reference,  but  not  as  evidence,  386  (2). 
immaterial  and  unprejudicial  papers  going  out  with  jury,  336  (3). 
papers  which  are  in  evidence  sent  out   with  jury  In  discretion  of   court 

386  (4). 
pleadings  may  be  taken  out,  but  not  as  evidence,  387. 
so,  in  general,  as  to  written  instructions  of  the  court,  388. 
judge's  minutes  cannot  be  taken  out,  389. 
nor  jurors  notes  of  the  testimony,  390. 
nor  counsel's  notes  of  the  trial,  395. 
nor  law  books,  359,  391  (1)  and  (2). 

hut  the  bare  presence  of  law  books  in  jury  room  will  not  vitiate  verdict  , 
.3.91  (I). 

(49) 


754  INDEX. 

BOOKS  AND  PAPERS  IN  THE  JURY  ROOM-Contimieil. 
nor  tlieir  use  for  a  trivial  purpose,  391  (1). 
law  books  sometimes  sent  to  jurj'  room,  391  (3). 

what  if  taken  out  secretly,  391  (4). 
scientific  books,  majis,  dictionaries,  directories,  392. 
Improper  papers  secretly  delivered  to  jury  by  prevailing  i>arty  or  liis  coun 

sel,3W  (5),393. 
by  counsel  for  losing  party,  393  (2). 

rule  where  improper  pajiers  taken  out  are  not  read  by  jury,3!)4. 
presumption  that  such  papers  were  read,  3S5. 
contrary  may  bo  shown  by  aftidavits  of  juroi's,  396. 
such  allidavits  not  admissible  to  sliow  that  improiiei-  matter  in  jury  rooni 

was  read  by  them,  391  (4)  note, 
nor  to  show  what  effect  the  papers,  when  read,  had  ujion  them,  39". 
effect  of  taking  out  papers  which  court  has  instructed  jury  to  disregard,  399. 
error  in  permitting  jury  to  take  out  imi)roper  matter,  how  taken  advantage 

of,  400. 
recalling  jurj-  and  delivering  papers  to  them,  401. 
statutory  provisions  as  to,  402. 
BOX.    See  Drawing  the  Panel;  Impanei.linu.' 
BRIBERY  OF  JURORS.     See  EMBRACERY. 

witness  fees  received  by  juror  not  a  gratuity,  379. 


CAPITAL  CASES.     See  SPECIAL  VENIRE. 

Virginia  statute  for  summoning  jurors  in,  1. 

waiver  of  full  jury  in,  7. 

service  of  copy  of  panel  upon  accused  in,  110  et  seq. 

right  of  peremptory  challenge  not  restricted  to,  1.56. 

conscientious  scruples  against  capital  punishment  a  ground  of  challenge  in, 
202. 

otherwise  as  to  opposition  to  capital  punishment  upon  political  grounds, 
203. 

prisoner  waives  nothing  in,  303. 

how  as  to  objections  to  competency  of  jurers  not  known  until  after  verdict, 
ih. 

separation  of  jurors  in,  318,  319,  .331,  340,  341. 

reading  of  newspapers  by  jury  during  trial  of,  350,  351. 

communication  with  jury  during  deliberations  upon,  362  (3)  and  (5). 

prejudicial  communications  between  jurors  in,  363. 
CHALLENGES  IN  GENERAL. 

divided  into  challenge  to  the  array  and  challenges  to  the  polls,  12.). 

challenges  to  the  polls  subdivided  into  peremptory  challenges  and  chal- 
lenges for  cause,  152. 

to  grand  jurors.    See  Objections  to  Grand  Jl'uors. 

CHALLENGES  TO  THE  POLLS.     See  Chailenges  FOR  Cau.se;   Peuemptorv 
Challbnges. 

divided  into  peremptoiy  challenges  and  challenges  for  cause,  152. 
(JHALLENGES  FOR  CAUSE.    See  Trial  of  Challenges;  Impanelling. 

Lord  Coke's  classification,  1.53. 

usuallj'  divided  into  principal  challenges  and  challenges  to  the  favor,  152. 

the  former  ti-iedby  the  court,  the  latter  by  triors,  ib. 

the  distinctien  between  the  two  fading  away,  1.52,  172. 

but  of  sufficient  value  to  be  retained,  1.52. 

illustrations  of  challenges  for  principal  cause  at  common  law,  170  (1)  and  (2). 

the  causes  of  favor  infinite,  171, 175. 

existence  of  this  form  of  challenge  under  statutes,  152, 175. 

distinctive  statutory  system  of  challenges  in  some  States,  173  and  note, 
general  causes  of  challenge,  ib. 


INDEX.  755 

CH-VLLENGES  FOR  CAUSE— Continued. 

particular  causes  of  challenge,  173  and  note. 

cliallenges  tor  implied  bias,  ib. 

challenges  for  actual  bias,  ib. 
lack  of  statutory  qualifloations,  174. 
must  be  qnalitied  at  time  of  service,  174  (1), 

non  resident,  174  (-2). 

not  a  voter,  174  (3). 

not  a  freeholder,  174  (4). 

not  a  householder,  174  (5). 

not  a  tax -payer,  174  (6). 
whether  statutory  causes  of  challenge  are  exclusive,  175,  ISl  note,  247. 
iilienage,  176. 

ignorance  of  the  English  language,  177. 
■consanguinity  and  affinity,  178. 

common  law  rule  as  to  consanguinity,  178  (1). 

meaning  of  the  term  "  affinity,"  178  (2). 

common  law  rule  as  to  afHnity,  178  (3). 

relationship  must  be  to  a  party,  178  (4). 

exceptions  to  this  rule,  178  (5). 

mode  of  reckoning  degrees,  178  (6). 
interest,  public  or  corporate,  179. 

tax-payer  in  municipal  corporation,  179  (1). 

how  affected  by  statutes,  179  (2). 

member  of  private  corporation,  179  (3). 
interest,  private,  180. 

direct  interest  in  result  of  suit,  180. 

interest  as  executor  or  administrator,  180  (1). 

contingent  interest  as  surety,  180  (2). 
membership  in  association  for  suppression  of  crime,  181. 
subscription  to  a  fund  to  prosecute  or  defend  a  suit,  181  notes, 
membership  in  benevolent  associations,  182, 
prior  service,  183. 

at  a  term  or  during  a  yeai",  183  (1). 

in  the  same  or  a  similar  case,  183  (2). 
landlord  and  tenant,  184. 
business  relations,  1^5. 
employer  and  employee,  i6. 
previous  misconduct  as  a  juror,  186. 
party  to  anotlier  suit  at  the  same  term,  187. 
prejudice  and  bias  distinguished,  191. 
prejudice  against  the  crime  charged,  193. 
l^rejudice  arising  otherwise,  194. 
prejudice  against  a  party's  occupation,  195. 
prejudice  against  a  party's  nationality,  196. 

prejudice  against  an  accused  person  arising  from  general  reputation,  197. 
prejudice  against  circumstantial  evidence,  202. 
belief  that  the  accused  is  innocent,  198. 
a  feeling  of  lenitj\  199. 
the  juror  unwilling  to  trust  himself,  200. 

a  preference  in  case  the  evidence  is  equally  balanced,  201,224  note, 
conscientious  scruples  against  capital  punishment,  202. 
opposition  to  capital  punislimeiit  upon  political  grounds,  203. 
opinion  upon  the  subject-matter  of  a  civil  or  criminal  case,  204. 

confused  state  of  the  law  upon  this  point,  ib. 

a  ground  of  challenge  for  principal  cause  or  to  the  favor,  205. 

formation  without  expression  of  opinion,  206. 

light  expressions,  hypothetical  opinions,  opinions  founded  upon  rumor, 
newspaper  reports,  and  the  like  do  not  disqualify,  207,  208,  203. 

this  rule  to  be  guardedly  applied,  207,  208. 


756  INDKX. 

CHALLEXGKS  FOR  CAUSK— Coutiiuiod. 

meaning  of  the  term  "  Impression,"  '20.1. 

liartioular  expressions  of  opinion  wliicli  do  not  disiiualify,  211'. 

what  is  said  in  a  si>irit  of  levity,  ib. 

luisty  c'xc'himations  upon  recH'ivinfj  stiirtlinf^  information,  (7*. 
nature  of  opinions  whieli  do  dis(pialify,  -Ml. 
oi)inions  founded  upon  rumor,  whi'ii  tixinl,  disipudify,  ib. 
an  unqualified  opinion,  -2 12. 
oiiinion  derived  from  an  authentic  source,  21;!. 

opinions  based  upon  newspaper  rei)orts  of  testimony  of  witnesses,  214. 
opinions  whicli  can  be  removed  only  l)y  evidence,  ai.l. 
opinions  based  upon  personal  knowledjie,  2IG. 
opinions  upon  particular  facts  involved  In  the  issue,  217,  21s. 

to  dis<pialify  the  fact  must  be  matei-ial,  217. 

exiilanation  and  illustrations,  ib. 

opinion  as  to  guilt  of  jirinclpal  on  trial  of  an  accessory,  ib. 

opinion  as  to  measure  of  punishment,  in  case  the  accused  is  guilty,, 
ib. 
opinions  which  en.bodj*  conclusions  of  law,  218. 
disqualifying  effect  of  -when  indicative  of  bias,  2.9. 
belief  that  the  law  is  "  a  good  one,"  ib. 
a  disqualifying  oi)inion  cannt)t  be  laid  aside,  220. 
a  change  of  opinion  possible,  221. 
the  Xew  York  statute  of  1872  has  worked  a  radical  change  in  ilu;  law,  222. 

constitutionality  of  this  statute,  22}. 

construction  of  it,  224. 
no  right  of  challenge  to  polls  for  causes  affecting  the  array,  2()(3  (1)  note, 
to  grand  jurors.    See  Ob.jectioxs  to  Gkand  Jurors. 

CILVLLLENGE  TO  THE  PAXEL.    See  Ch.vi.i.exue  to  the  AitRVV. 
a  modern  designation  of  the  challenge  to  the  array,  123  note. 

CH.VLLEXGE  TO  THE  ARRAY, 
ctlvlsions  of  at  common  law,  12G. 
principal,  ib. 
to  the  favor,  ib. 

the  former  tried  i>y  the  court,  the  latter  by  triors,  ib. 
distinction  between  principal  challenge  and  challenge  to  favor  nuw  obsolete, 

ib. 
various  grounds  at  common  law  specified,  126,  KIO. 
consanguinity  or  affinity  of  summoning  officer,  l:;i. 
summoning  officer  a  party  to  the  suit,  I:12. 
or  interested  in  the  suit,  132,  144  (2). 
or  an  advocate  of  a  party,  132. 
nomination  of  jurors  by  a  party,  133. 
for  irregularities  in  selecting  the  jury  list,  134  et  sei/. 

in  general,  134,  135,  141. 
failure  to  record  the  jury  list,  13i!. 

informality  in  certificate  of  selection,  137. 

jury  list  made  by  other  thanstatutory  officers,  1:'>S,  141. 

jury  list  made  by  commissioner  not  having  taken  oath  of  olheo,  13?. 

perfect  list  cannot  be  demanded,  47  note,  130. 

jury  list  incomplete  through  fraud,  I4(i. 

discretion  of  statutory  officers  in  making  jury  list  cannot  be   reviewed,. 
139,  140. 

custody  of  jury  wheel,  142. 
for  irregularities  in  drawing  the  panel 

in  general,  63,  143  (1). 

essential  statutory  provisions  mast  be  followed,  143  (2). 

departure  from  statutory  forms  no  ground  unless  material,  U)  (3). 

absence  of  statutory  officers,  144  (li. 


ixDEX.  757 

CHALLENGE  TO  THE  ARRAV— Continued. 

interest«(l  persons  and  those  otliei'wise  biased  may  act  at  the  drawing, 
U4  (1)  and  (2). 

in  Soiitli  Cai'olina  persons  conducting  the  drawing  must  be  as  indifferent 
as  tlie  sheriff  at  common  hiw,  144  (1). 

statutory  time  of  conducting  the  drawing  usually  directory,  14."). 
for  irregularities  in  summoning  the  panel,  140. 

for  defects  in  venire,  146  (2).    See  Vbnike. 

for  interest  of  clerk  issuing  the  venire  in  New  England,  146  (8). 

for  failure  to  issue  venire,  146  (4). 

for  omission  to  summon  one  or  more  persons  drawn,  146  (.5). 

for  omission  to  make  return,  or  failure  to  return  within  statutory  time, 
146  (6)  and  (8). 

for  defects  in  return,  146  (7). 

lor  execution  of  venire  by  other  than  statutory  officer  146  (9). 

for  summoning  jurors  for  a  Territorial  court  under  a  statute  applicable 
to  Federal  courts,  53. 

for  summoning  more  persons  than  directed  by  law,  70. 

for  expression  of  an  opinion  iipon  the  ease,  130. 

fraud  the  only  ground  of  objection  in  some  States,  130 and  note,  143  (3). 
objections  to  particular  jurors  cannot  be  taken  by  challeage  to  the  array,  3 

note,  75,  12S,  135,  146  (10). 
members  of  quashed  panel  re-summoned  on  special  venire  when,  147,  81  (1). 
for  improper  action  by  the  court  in  excusing  jurors,  259  (3)  note,  261. 
precede  challenges  to  the  polls,  266  note, 275  (1). 
of  grand  jurors.    See  Objections  to  Grand  Jurors. 

CIVIL  RIGHTS.    See  Constitutional  Law. 

colored  man  cannot  demand  that  a  portion  of  the  jury  shall  be  of  his  race, 
14,  29. 

remedy  for  wrongful  exclusion  of  colored  jurors,  29,30,  53G  (5)  note. 
CLERK. 

harmless  communications  between  jury  and,  361. 

appointment  of  by  grand  jury,  623. 

one  not  of  their  number  admitted  to  grand  jury  i-oom,  631. 
COLORED  PERSONS.    See  Civil  Rights. 

COMMITTING  MAGISTRATE. 

necessity  of  preliminary  examination  before.     See  Indictment. 

COMMUNICATIONS  WITH  JURORS. 

unlawful  during  separation  of  the  juiy,  314. 

during  recess  of  court,  341  (2). 

bj'  strangers  maj'  be  shown  to  be  harmless,  .349. 

presumption  arising  from  unexplained  communication,  348  (2),  349  (2). 

in  civil  cases,  communications  must  be  shown  to  have  been  prejudicial, 

349  (3). 
presumption  arising  from  communication  bj-  successful  party,  .348  (3). 
undue  hospitality  extended  by  successful  party,  ib. 
no  prejudice  arises  from  after  agreeing  to  a  sealed  verdict,  349  (1). 
reading  newspapers  generally,  350. 

effect  of  reading  such  as  contain  reports  of  the  trial,  .351.  ' 

pi'ejudice  to  be  conclusively  presumed  from  the  reading  of  unfavorable  edi- 
torial comments,  351. 
communications  between  jurors  and  witnesses,  3.52. 
no  ground  for  a  new  trial  unless  prejudicial,  352. 
i"e-examination  of  witnesses  in  the  jury  room,  353. 
misconduct  of  jurors  promoted  by  successful  party,  354. 
judge  may  not  privately  communicate  with,  SiiS  (1),  357. 
prejudice  conclusively  presumed  from  such  communication,  355  (2>. 
right  to  new  trial  on  this  ground,  360. 


758  INDEX. 

COMMUNICATIONS  WITH  JUROUS— Continued. 

in  New  Hampshire  and  South  Carolina  judge  may  privately  communicato 

with  jury,  35.")  (3)  and  (4). 
judge  may  eommunicate  with  jury  in  presence  of  parties*  or  their  attorneys, 

356. 
sheriff  may  not  privately  eommunicate  with  Iii3  jury,  353. 
judge  may  send  written  instructions  to  jurj'room  with  consent  of  counsel, 

357,  359. 
passive  acquiescence  not  consent,  359. 

harmless  conxmunication.s  between  jury  and  clerk  of  court,  361. 
presence  of  bailiff  in  juiy  room  during  deliberations,  362  (1). 
harmless  communications  between  jurors  and  oflicer  in  charge  of  tliem, 

362  (2). 
prejudicial  communications  between  them,  362  (3). 
conflict  of  decisions  in  New  York,  362  (5). 
proof  in  such  cases,  36'J  (4). 

unlawful  communications  between  jurors  themselves  in  jury  room,  .363. 
whether  these  may  be  shown  by  aflidavits  of  jurors,  363. 
such  aflidavits  must  be  voluntary,  363. 
vf      tampering  with  juries,  364. 

embracery  at  common  law,  364  (1). 

embraceor  punished  criminally  and  also  subject  to  civil  action  for  dam- 
^,  ages,  364(1). 

difliculties  in  maintaining  civil  action  for,  364  (2). 
the  offense  seldom  punished  bj'  indictment,  364  (1)  note, 
vitiates  the  verdict,  364  (2)  and  (5). 
how  punished  under  statutes,  364  (3). 
,  subjects  juror  and  embraceor  to  punishment  for  contempt,  364  (1)  and  (4). 

■""^  aflidavits  of  jurors  admissible  to  show,  3  4  (6). 

by  counsel,  364  (8). 

by  prosecuting  witnesses,  364  (9)  and  (5). 
by  oflicious  third  persons,  364  (10). 

presumption  arising  from  unexplained  communications,  364  (11). 
where  communication  is  disclosed  prejudice  must  be  apparent,  to  consti- 
tute ground  for  new  trial,  364  (12). 
duty  of  party  or  counsel  knowing  to  disclose  to  court  before  verdict,  ib. 
party  moving  for  new  trial  must  himself  be  innocent,  ib. 
communications  made  by  jurors,  365. 

to  jiarties,  365  (2).  , 

punishable  as  contempt  of  court,  ib. 
do  not  necessarily  vitiate  the  verdict,  ib. 
to  third  persons,  365  (3). 
'     no  ground  for  a  new  trial  unless  indicative  of  prejudice,  365  (3)  and  (4). 

remarks  indicating  prejudice,  365  (4). 
witness  fees  received  by  juror  not  a  gratuity,  379. 
COMPETENCY.    See  Ch.\llenges  for  Cau.se;  Tkial  of  Challenges. 
presumption  as  to  in  case  of  jurors,  262,  294,  690. 

aflidavits  in  support  of  motion  for  new  trial  impeaching,  275  (2),  302,  303. 
affidavit  of  jr.ror  in  support  of  his,  304. 

CONFESSIONS. 

of  accused  before  grand  jury,  643. 
testimony  of  grand  jurors  as  to,  706  (6)  note. 
CONSTABLE.    See  Bailiff;  Siiekiff. 
CONSTITUTIONAL  LAW. 

power  of  the  State  legislatures 

to  direct  from  whence  the  jury  shall  be  summoned,  1,  3  note. 

to  authorize  a  jury  of  less  than  twelve,  10. 

to  prescribe  qualiflcations  of  jurors,  22  et  seq\  174  (3)  note. 

to  control  incidents  of  the  right  of  jury  trial,  23  note,  45  note. 


INDEX.  759 

CONSTITUTIONAL  LAW  —  Continued. 

to  limit  jury  duty  to  wliite  persons,  27,  481  note. 

to  prescribe  exemptions  from  jury  duty,  35. 

to  pass  a  jury  act  applicable  to  particular  districts,  45  note. 

to  increase,  diminish  or  take  away  the  right  of  peremptory  challenge 

165  (1). 
to  prescribe  suffrage  as  a  qnaliflcation  for  jurors,  174  (3)  note, 
to  take  away  the  riglit  of  challenge  for  implied  bias,  175. 
to  take  away  the  right  of  challenge  for  the  formation  or  expression  of  an 

opinion,  hitherto  obnoxious  to  the  law,  223  and  note, 
to  regulate  order  of  challenges,  266  (2)  note. 

to  pass  an  act  to  cure  any  irregularitj^  in  the  venire,  or  in  the  drawing 
summoning,  returning  and  impanelling  of  grand  jurors,  518  note, 
power  of  Congress. 

to  punish  for  exclusion  of  colored  jurors,  29. 
to  prescribe  exemptions  from  jury  duty,  34  note. 
COiSSTITUTIONAL  PROVISIONS, 
jury  of  the  vicinage,  2,  3. 
right  of  trial  by  jury,  2,  5,  8,  10,  24. 
waiver  of  full  jury  in  civil  cases,  8. 
number  of  jury  in  courts  not  of  record,  10. 
verdict  by  less  than  full  number,  8. 
qualifications  of  jurors,  22. 
no  religious  or  political  test,  25. 
disqualifications  of  jurors,  25. 
CONTEMPT. 

power  of  Federal  courts  to  punish,  364  (4). 

power  of  grand  jury  to  detain  witnesses  in  custody  to  be  punished  for,  595. 

court  will  punish  witnesses  for  contempt  of  authority  of  grand  jury,  596,  624, 

647. 
grand  jurors  may  be  punished  for  by  court,  596. 
libel  of  the  grand  jury  punished  as  a,  596  note. 

communication  witli  grand  jury  a  contempt  in  some  jurisdictions,  614  (3). 
COPY  OF  THE  PANEL.    See  Service  of  Panel  upon  the  Accused. 

CORONER. 

when  a  proper  substitute  for  sheriff  as  summoning  officer,  82  (1),  557  (5). 

COUNSEL.    See  Attorney. 
"  COUNTY  AT  LARGE." 

what  will  be  regarded  as  a  taking  from,  95. 
CUSTODY  OF  JURORS.    See  SEPARATION  OF  JURORS, 
under  the  old  law  prisoners  of  the  court,  310. 
relaxation  of  this  strictness,  310,  350. 
placed  in  charge  of  sworn  officers,  310. 
officers  specially  sworn  for  this  duty  in  some  States,  322. 
no  officer  need  attend  them  when  remaining  in  court  or  otherwise  isolated, 

322  and  note, 
who  may  be  sworn  to  attend  them,  .323. 
an  interested  person  shoiild  not,  324. 
personal  custody  of  jury  by  the  judge.  325. 
form  of  oath  by  attending  officer,  326. 
DE  FACTO  OFFICERS, 
acts  of  valid, 

jury  commissioner,  138. 
sheriff,  ib. 
clerk,  590. 
DEPOSITIONS. 

when  taken  to  jury  room,  385. 

of  jurors.    See  Affidavits  of  Jurors. 


7 GO  INDEX. 

DEPUTY. 

ot  clerk  iimy  act  at  drawing  of  panel,  U4  (1). 

of  slieriff  may  siinuiioii  talesmen  when  the  .sheriff  is  gi-ossly  ijjnorant  of  his 

duties,  8-2  (1). 
of  sheriff  before  acting  must  take  oath  of  oflice,  144  ('2). 
DISCHARGE  OF  JURY. 

distinction  between  power  to  i)erniit  jury  to  separate  and  powerto  discharge 

them,  312. 
effect  of  without  consent  of  defendant,  ;J12. 

DI^^QUALIFIC.VTIOX.    See  Challenges  i-ok  Cause. 
DISTRINGAS. 

origin  of  and  use  at  common  law,  66. 
DRAWING  THE  PANEL.    See  Challenge  to  the  Aukav. 

who  may  conduct  tlie  drawing,  144. 

the  usual  method  stated,.'),"). 

the  method  in  New  Y'ork  stated  at  length, 50,  .57. 

exceptional  method  in  New  Jersey,  58. 

the  system  in  New  England,  59. 

penalty  tor  neglect  to  make  the  drawing,  GO. 

certificate  of  otlicers  as  to,  61. 

list  of  jurors  drawn  made  public,  62. 

general  views  as  to  irregularities  in  drawing,  63. 

no  ground  of  objection  to  the  panel  unless  prejudicial,  ib. 

what  irregularities  are  prejudicial,  ib. 

in  Federal  courts. 

under  section  SCO  of  the  Revised  Statutes,  52  (5). 
under  the  act  of  1879,  40. 

of  grand  jurors,  484. 

the  panel  constituted  in  the  discretion  of  certain  ofHcers  in  some  States, 
485. 

grounds  of  objection  to  panel  of  grand  jurors  for  irregularities  growing  out 
of  drawing,  .556. 
DRINKING  INTOXICATING  LIQUORS.    See  Refreshment  of  Jurors. 
EATING,  DRINKING  AND  ENTERTAINMENT  OF  JURORS.    See  Refreshment 

OF  Jurors. 
ELISORS. 

when  proper  substitutes  for  the  coroner  as  summoning  officer,  82  (2). 

array  brought  in  by  cannot  be  challenged,  ib. 
EaiBRACERY'.    See  Communications  with  Jurors. 

ENTERT.VINMENT  OF  JURORS.     See  Custody  of  Jurors;  Refreshment  of 
Jurors. 

EXCEPTIONS.     See  Api'ell.vte  Courts ;  Bill  of  Exceptions;   Objections; 
Waiver. 

EXCUSING  JURORS.    See  Impanelling. 

court  may  excuse  juror  for  causes  satisfactory  to  itself,  242, 

EXEMPTIONS  FROM  JURY"  DUTY*. 

persons  engaged  in  the  public  service,  34. 

persons  engaged  in  certain  occupations,  36. 

only  while  actually  so  engaged,  37. 

tlierefore  honorary  mambers  of  public  organizations  not  exempt,  3S. 

exemption  confers  no  vested  right,  .35,  39. 

a  contrary  view  in  Missouri,  39  (2). 

ground  of  exemption  not  a  ground  of  challenge,  40. 

in  Federal  courts,  51. 

from  grand  jurj'  duty,  481. 

l^rivilege       may  be  waived,  481  note. 


INDEX,  761 

FEDERAL  COURTS  — JURORS  IN.    See  Qdaltfig.vtions  ofJukors;  Selection. 
OF  Jurors. 
power  to  punish  foK  contempt,  364  (4). 

FOURTEENTH  AMENDMENT  TO  FEDERAL  CONSTITUTION. 

renijers  unconstitutional  a  statute  limiting  jury  duty  to  white  persons,  27. 
FREEHOLDER. 

who  is,  174  (4),  565. 


GR^VND  JURORS.    See  Grand  Jury;  Orjections  to  Grand  Jurors. 
qnaiiflcations  of  at  common  law,  480. 
exemptions  from  grand  jury  duty,  ib. 
privilege  of  may  be  waived,  481  note, 
qualifications  under  American  statutes,  481. 
In  Federal  courts,  482. 
selection  of,  48,3. 

at  common  law  and  under  0  Geo.  IV.,  c.  50,  483  (1). 
in  the  United  States  from  the  general  jury  list,  483  (2). 
separate  grand  jury  list,  483  (3). 
drawing  the  panel,  484. 

the  panel  constituted  in  the  discretion  of  certain  officers  in  some  States,  485. 
summoning  the  panel,  486. 
tales  grand  jurors,  488  et  seq. 

no  tales  for  grand  jurors  at  common  law,  488. 
but  granted  by  statutes  in  many  States,  489. 
when  summoned,  490. 
whence  summoned,  491. 
to  what  number,  492. 

summoned  in  the  discretion  of  the  sheriff,  493,  551. 
and  iipon  verbal  order  of  court,  494. 
qualifications  of,  495. 

may  be  summoned  upon  reassembling  of  grand  jury,  496. 
obligation  of  secresy  resting  upon,  701  et  seq. 
as  presci-ibed  by  the  oath,  701. 
penalty  for  violation  of,  701  note, 
policy  of  this  requirement,  702. 
interpretation  of,  703. 
testimony  of  grand  juror,  704  et  seq. 
to  show  what  was  the  finding,  704. 
to  sliow  who  was  the  prosecutor,  705. 
to  show  who  were  the  witnesses  and  their  testimony,  706. 

vipon  an  indictment  for  perjury  before  the  grand  jury,  70o  (2). 

to  contradict  a  witness,  706  (3). 

to  confirm  a  witness,  706  (4). 

to  show  that  the  finding  was  based    upon  incompetent  testimony,, 

706   (5). 
to  show  that  the  indictment  was  returned  without  evidence,  706  (5) 

note, 
to  establish  other  facts,  706   (6). 
testimony  of  others  than  grand  jnrors  to  show  proceedings  of  the  grand 

jury,  707. 
personal  liabilitj'  of  grand  jurors,  710,  711. 

GRAND  JURY.    See  Grand  Jurors;  Objections  to  Grand  Jurors;  Present- 
ment; Indictment. 
early  history  of  accusing  body,  463. 
it  consisted  of  twelve  men,  464. 
oath  of  the  twelve,  465. 
charge  of  the  justices,  466. 
an  accusing  body  for  each  hundred,  467. 

(50) 


7(12  INDEX. 

<;RAND  jury— Continued, 
rise  of  the  grand  jury,  **">■*■ 

constilutioniil  rij^it  to  aceusiilion  bj-  in  England,  4G0. 
constitutional  provisions  as  to  in  the  United  States,  470. 
tlie  tirand  jury  in  what  cases  di.spensed  witli,  471. 
abolition  of  the  t,'rana  jury,  47-2. 
functions  of  the  .yrand  jury,  473. 

duties  of  individual  tirand  jurors  in  Connecticut  and  Vermont,  474. 
the  institution  eulogized,  475. 
this  eulogy  criticised,  47(5. 
special  grand  jury  at  common  law,  407. 

under  statutes  of  the  several  States.  498. 

default  of  grand  jurors  unnecessary  under  California  practice,  498  (2). 

total  default  construed  as  a  deficiency,  498  (3). 

formalities  in  procuring,  499. 

court  cannot  capriciously  create  a  default  of  grand  jurors,  500,  551. 
for  special  term,  .501. 

power  of  court  to  order,  .501  (2). 

must  be  summoned  according  to  law,  501  (3). 
for  adjourned  term,  502. 
reassembling  the,  503. 

within  what  time,  503  (2). 

who  included  in  the  order  for  reassembling,  503  (3). 
impanelling  the,  577  et  se.q. 

accused  need  not  be  personally  present,  545  note. 

at  common  law  an  e.i-  parte  proceeding,  577. 

process  of  within  the  discretion  of  the  court,  578. 

statutory  provisions  as  to  time  of  directory  only,  579. 

excusing  grand  jurors,  5S0. 

statutory  grounds  for  excusing  of  not  exclusive,  580  (1). 

a  contrary  view, 580  (2). 

presumption  as  to  validity  of  excuse,  580  (3). 

substitute  for  grand  juror  excused  or  incompetent,  581. 

tardy  juror  may  be  sent  to  grand  jury  room,  582. 

number  of  grand  jurors  at  common  law, 583  (1). 

number  as  fixed  by  statutes  of  the  several  States,  583  (2). 

number  in  Territorial  courts,  583  (3). 

number  directory  only,  584. 

what  if  more  than  twenty-three  impanelled,  .585. 

presumption  as  to  regularity  of  organization,  586. 
swearing  the,  589  et  seq. 

the  practice  in  England,  589. 

in  the  several  States,  590. 

sworn  in  open  court,  591. 

grand  jurors  may  affirm,  592. 

form  of  oath,  593. 
a-elationship  of  court  and  grand  jury,. 595  et  seq. 

the  grand  jury  an  independent  constituent  of  the  court,  595. 

bui;  in  certain  respects  subject  to  the  control  of  the  court,  596. 

may  be  punished  by  court  for  contempt,  .596. 

afforcing  the  grand  jury,  597. 

session  in  open  court,  .598. 

charging  the  grand  jury,  599 

grand  juiT  may  apply  to  court  or  prosecuting  attorney  for  advice,  599, 634. 

charged  only  in  general  terms,  600.. 

omission  to  charge.  601. 

matters  of  general  notoriety  given  in  charge  by  the  court,  612. 
powers  of  the,  604  et  seq. 

co-extensive  with  those  of  the  court,  604. 

may  find  an  indictment  while  charge  is  being  considered  by  a  committing 


INDEX. 


763; 


GRAND  JURY— Continued, 
magistrate,  (!08. 
so  where    court  is  not  in  session  or  during  vacancy  in  office  of  prose- 
cuting attorney,  595. 
may  inquire  into  oilences  committed  after  they  are  impanelled,  OOS. 
general  inquisitorial  powers  of,  615. 

expressions  of  opinion  showing,  615  (1). 

positive  authority  to  this  effect,  615  (2). 

apparent  from  form  of  oath,  615  (3). 

inquisitorial  duty  enjoined  by  statute,  615  (4). 

these  ]iowers  denied  by  some  courts,  616. 
special  inquisitorial  powers,  617. 
power  to  compel  production  of  telegrams,  618. 

to  find  an  indictment  when  court  is  not  in  session,  595. 

to  find  an  indictment  during  vacancy  in  office  of  prosecuting  attorney, 
ib. 

to  detain  witnesses  in  custody,  ib. 

to  exclude  prosecuting  officer  from  grand  jury  room,  ib. 
proceedings  of  the,  622  et  seq. 
appointment  of  foreman,  622. 
appointment  of  clerk,  623. 

testimony  of  witnesses  preserved  by  clerk,  ib. 
discretionary  with  court  to  furnish  copy  of  to  prisoner,  j6.  note, 
prisoner  entitled  to  copy  of  testimony  in  Iowa  and  Minnesota,  623.. 
summoning  witnesses,  624. 
witnesses  bound  to  appear  and  testify,  ib. 
swearing  witnesses,  625. 

in  open  court,  625  (1). 

in  grand  jury  room  by  a  magistrate,  625  (2). 

by  foreman  and  other  officers  under  statutes,  625  (3). 

effect  of  such  statutes,  625  (4). 

form  of  oath,  626. 
custody  of  the  grand  jury,  627. 
sessions  liow  far  secret,  629  et  seq. 

private  prosecutors  admitted  under  English  practice,  609,  629. 

and  King's  counsel  in  cases  of  high  treason,  630. 

private  prosecutor  excluded  in  some  jurisdictions,  614  (2)  and  (3). 

clerk  and  police  officer  admitted  under  English  practice,  631. 

prosecuting  officer,  assistant  and  clerk  admitted  in  some  jurisdictions, 

632. 
how  as  to  presence  of  bailiff,  ib. 

solicitors  and  hired  prosecutors  excluded  in  others,  633. 
counsel  of  accused  excluded,  633,  636. 

accused  admitted  in  discretion  of  court  in  Connecticut,  637. 
presence  of  prosecuting  officer  in  jury  room  how  affected  by  statutes.  634. 
all  persons  excluded  during  deliberations  and  voting,  6,32,  634. 
session  in  open  court  in  the  proceedings  against  the  Earl  of  Shaftesbury, 

598. 
such  a  session  illegal,  ib. 
hearing  the  evidence,  636  et  seq. 

evidence  originally  heard  onlj'  in  support  of  charge,  636,  637. 

exculpatory  evidence  now  heard,  638,  639. 

witnesses  called  in  discretion  of  prosecuting  officer,  640. 

the  best  evidence  required,  641. 

effect  of  hearing  incompetent  evidence,  642. 

accused  may  voluntarily  testify,  643. 

testimony  of  grand  jurors,  644. 

quantum  of  evidence  necessary,  645. 

grand  jury  judges  of  credibility  of  witnesses,  646. 

power  of  grand  jury  to  coerce  witnesses,  595,  647. 


764  INDEX. 

-GRAND  JURY -Continued. 

sanity  of  accused  need  not  be  shown,  (US. 

indictment  substituted  or  returned  witliout  evidence,  619. 
as  to  finding  and  indorsement  of  indictment,  see  Indictment. 
time  of  objection  for  irregularities  in  proceedings  of,  G86. 
form  of  such  objection,  (W7. 
record  must  show  what  as  to  constitution  and  proceedings  of,  "2". 

HEARSAY. 

testimonj'  of  others  on  information  derived  from  jurors  inadmissible,  44.5. 
HOUSEHOLDER. 

wlio  is,  174  (.')). 
HUXDREDORS. 

challenge  for  want  of,  1. 

abolition  of  the  challenge,  1. 

IMPANELLING.     See  Challenge  to  the  Akr.w;    Challenges  fou  Cause; 
Peremptory  Challenges;  Trial  of  Challenges. 
meaning  of  this  term,  129  note,  257. 
duty  of  the  court  to  supervise,  258. 
liberal  discretion  allowed  the  court  for  this  purpose,  258,  265  notes,  269  (G) 

note,  269  (4),  270,  273. 
excusing  jurors,  259. 

generally  conceded  to  be  within  the  discretion  of  the  court,  259  (1). 

court  may  examine  jurors  or  other  witnesses  for  grounds,  ib. 

sheriff  has  no  power  to  excuse  jurors,  ib. 

struck  juror  may  be  excused,  ib. 

how  as  to  jurors  summoned  on  special  venire,  ib. 

some  sufficient  reasons  enumerated,  259  (1)  and  (2). 

this  power  to  be  exercised  with  caution,  259,  (1). 
jurors /)»-jma/acie  competent,  262. 

no  right  of  challenge  for  causes  favorable  to  challenger,  263. 
right  of  juror  to  challenge  himself,  ib. 

waiver  of  peremptory  challenge  by  failure  to  challenge  in  turn,  269  (5). 
waiver  of  objections  to  juror  known  to  be  subject  to  challenge,  259  (1),  26;>, 

275  (2),  275  (3). 
waiver  of  objections  to  panel  by  failure  to  challenge  the  array,  261. 
waiver  of  challenge  to  array  by  challenging  the  polls,  266  (1),  275  (1). 
counsel  to  assist  in  challenging,  264. 
time  for  challenging,  265. 

before  the  juror  is  sworn,  265,  269  (6). 

court  may  permit  afterwards,  265  notes,  269  (6)  note,  270. 
•order  of  cha  lenges,  266. 

challenge  to  the  array  precedes  challenges  to  the  polls,  266  (1). 

challenge  for  principal  cause  precedes  challenge  for  favor,  ib. 

whether  pareinptory  challenges  must  precede  challenges  for  cause,  266  (2). 

mode  of  challenging,  231. 

challenge  to  the  array  to  be  in  writing,  that  to  the  polls,  verbal,  231  notes. 

ground  of  challenge  must  be  stated,  231,  242. 

proceedings  upon  challenges,  232. 
statutory  forms  to  be  observed,  267,  269  (5).  . 

how  in  absence  of  such  provisions,  268. 
impanelling  by  lot,  26S. 
impanelling  jurors  singly,  269  (1). 
impanelling  in  a  body  of  twelve,  269  (2). 
impanelling  by  fours,  269  (3). 

order  of  challenging  between  parties,  269  (4)  and  (5). 
•discretion  of  court  as  to  order  of  challenging,  269  (4). 
•challenging  alternately,  269  (5). 


INDEX.  7G5 

IMPANELLING  —  Continued. 

no  right  of  peremptory  cliallenge  after  acceptance  of  juror,  269  (C). 

a  contrary  view,  269  (7). 

so  in  respect  ot  challenges  for  cause,  269  (8). 

no  vested  right  to  a  particular  juror,  271. 

right  of  exception  for  improper  rejection  of  a  juror,  250,  271. 

jurors  absent  wlien  called,  272. 

.jurors  set  aside  after  being  sworn,  273. 

withdrawal  of  a  juror,  273,  275  (3)  note. 

a  juror's  right  to  serve,  274. 

errors  in  must  be  excepted  to  at  the  time  of,  275  (3) ,  278,  295,  296. 

party  cannot  complain  of  allowance  of  his  own  objections,  275  (3). 

impanelling  in  Territorial  courts,  279. 

right  of  challenge  to  polls  of  a  special  jurj',  280. 

party  bound  to  challenge  peremptorily  to  cure  error  in  disallowing  good 

cause  of  challenge,  276  (1;. 
a  contrary  view,  276  (2). 

error  cured  by  challenging  peremptorily,  276  (3). 
unless  peremptory  challenges  are  svibsequently  exhausted,  276  (4). 
what  if  more  than  twelve  are  impanelled,  11. 
as  to  impanelling  the  grand  jury,  see  Grand  Jury. 

BMPLIED  BIAS.    See  Challenges  for  Cause. 

INDICTMENT.    See  GRAND  JURY, 
defined,  605. 

power  of  grand  jury  to  find  when  cou"t  is  not  in  session,  595. 
power  of  grand  jury  to  And  during  vacancy  in  ofHce  of  prosecuting  attorney, 

ib. 
proceedings  by  indictment  preferable  to  proceedings  by  presentment,  606. 
proceedings  preliminary  to,  607. 
examination  of  accused  by  a  committing  magistrate,  608. 

not  usually  had  in  England,  609. 

nor  generally  guaranteed  in  United  States,  610. 

expressly  granted  in  certain  cases  in  New  Hampshire,  610  (2). 

prior  to  informations  in  some  States,  610  (3). 
indictments  originate  how,  611. 

charge  preferred  ex  officio  by  prosecuting  officer,  013. 
meaning  of  "  found,"  653,  672. 
number  to  concur  in  finding,  654. 
Tight  to  find  a  part  of  the  bill  true,  655. 
finding  must  be  absolute  and  without  ambiguity,  656. 
return  of  finding  into  court,  657. 
amendment  of  indictment,  658. 
(publication  of  finding,  659. 
filing  indictment,  660. 
effect  of  finding  the  bill  not  true,  661. 
indorsement  of  finding,  664  et  seq. 

at  common  law,  664. 

the  modern  Engliiih  practice,  665. 

•effect  of  certificate,  666. 

how  in  United  States,  667. 

■different  forms  of  certificate,  668. 

official  signature  of  foreman,  669. 

full  name  of  foreman  unnecessary,  670. 

foreman's  ma^k  sufficient,  ib. 

attestation  of  foreman  superfiuous,  671. 

variance  in  spelling  of  foreman's  name  in  indorsement  from  that  ap 
pearing  of  record,  ib. 

.certificate  of  finding  s^uperfluous,  672. 
(teste  of  foreman  essential,  673. 


766  INDEX. 

INDICTMENT  — Contimioa. 

certifleato  and  attestation  by  foreman  superfluous,  674. 
certificate  and  attestation  by  foreman  required  by  statute,  07'). 
whether  these  statutes  mandatory,  670. 
other  indorsements,  680  et  seq. 
intendment  as  to,  680. 
style  of  case  and  name  of  offense,  081. 
signature  of  prosecuting?  attorney,  68'2. 
indorsement  of  private  prosecutor,  08:5. 
policy  of  statutes  requiring,  683  (1). 
indorsement  by  whom  made,  083  (2). 
necessity  of,  68:5  (:5) . 

who  may  be  a  private  prosecutor,  683  (4). 
form  of  indorsement,  685  (5). 
objection  for  want  of  prosecutor,  685  (0). 
indorsement  of  list  of  witnesses,  684. 
statutes  requiring,  0.84  (1). 
policy  of  these  statutes,  684  (2^. 
by  whom  made,  084  (3). 
sufficiency  of  indorsement,  084  (4.) 
objection  for  want  of,  6£4  (5). 
INDIFFERENT. 

the  juror  must  stand,  171  and  note. 
Lord  Mansfield's  standard  of  impartiality,  207. 
absolute  indifference  now  hardly  attainable,  ib: 
solicitude  of  the  law  for  an  impartial  jury,  125. 
INDORSEMENTS.     See  Indictment. 
INITIAL  LETTERS. 

indicating  christian  names  of  jurors  in  the  venire,  74  (5),  557  (3). 
in  the  copy  of  the  panel  served  uix>n  the  accused,  117. 
in  the  record,  Ofti. 
Indicating  office  of  foreman  of  grand  jury,  609. 
indicating  christian  name  of  foreman  of  grand  jury,  070. 
INTOXICATING  LIQUORS.    See  REFRESHMENT  OF  Jurors. 


JOINT  DEFENDANTS. 

number  of  jurors  in  panel  to  try,  79  (4) . 

entitled  to  their  peremptory  challenges  eacli  in  the  same  number  as  a  sole 

defendant,  102  (1). 
such  defendants  jointly  or  severally  tried,  in  discretion  of  court,  102  (2). 
separate  trials  cannot  be  demanded  by  as  a  matter  of  right,  102  (3). 
number  of  peremptory  challenges  allowed  the  prosecution  in  trial  of,  102  (4). 
how  the  right  of  peremptory  challenge  by  is  affected  by  statute,  102  (5) . 
JUDGE. 

now  generally  tries  all  challenges.    See  Trial  of  Challenges. 

may  excuse  jurors  for  reasons  satisfactory  to  himself,  242.    See  Impanelling. 

personal  custody  of  jurors  by,  325. 

may  not  privately  communicate  with  jurors,  355.   See  Communications  witis 

Jurors. 
duty  of  to  admonish  the  jury  not  to  discuss  the. case  during  adjournment 

303. 

JUDGES'  MINUTES. 

cannot  be  taken  to  jury  room,  389. 
JUROR'S  BOOK. 

preparation  of  under  English  Consolidated  Jury  Act,  127. 
JURORS'  NOTES  OF  TESTIMONY. 

cannot  be  taken  to  jury  room,  390. 


I^DEx.  767 

JURY  BOX. 

how  flUed,  55. 
JURYDE  MEDIETATE  I.INGU.E. 

origin  of,  IC. 

generally  abolished  by  statute,  17. 
JURY  LIST.    See  Selection  of  Jurors  ;  Challenge  to  the  Ahh.4.y. 

preparation  of  in  general,  43,  1-29. 

preparation  of  in  Federal  courts,  49. 

Statutory  number  of  directory,  47  note. 
JURY  ROOM.    See  Books  and  Papers  in  the  Jurv  Room. 

presence  of  strangers  in,  349  (1). 

newspapers  in,  350,  351, 

presence  of  bailiff  in  during  deliberations,  362,  (532. 

drinking  of  intoxicating  liquors  in,  378. 

experiments  of  jurors  in  to  determine  their  verdict,  41G. 

weapons  used  in  commission  of  crime  must  be  identified  before  they  are 
taken  to,  416  note. 

power  of  grand  jury  to  exclude  prosecuting  officer  from,  630. 
JURY  WHEEL. 

filling  and  refilling,  141. 

custodj'  of,  55,  142. 
JUSTICE'S  COURT. 

number  of  jury  in,  10. 

procuring  jury  in,  85. 

LAW  BOOKS.    See  Books  and  Papers  in  the  Jury  Room. 

LEGISLATURE— POWER  OF.    See  Constitutional  Law. 

LOCUS  IX  QUO. 

unauthorized  visit  of  jurors  to,  354. 


3IALICI0US  PROSECUTION. 

grand  jurois  not  liable  to  action  for,  711. 
MEDICINE.    See  Entertainment  of  Jurors. 

MISCONDUCT   OF  JURORS.     See  Separation   of   Jurors;    Communications 

with  Jurors;  Refreshment  of  Jurors;  Books  and  Papers  in  the  Jury 

Room;  Verdict;  New  Trial;  Affidavits  of  Jurors. 
unauthorized  visit  to  locus  in  quo,  354. 
lu'ivate  search  of  juror  for  evidence,  383  (4) ,  417. 

finding  of  trial  court  as  to  misconduct  in  some  States  conclusive,  434  (1). 
but  not  so  generally,  434  (2). 
presumption  that  the  jury  acted  regularly,  435. 

evidence  to  establish  misconduct  must  be  clear  and  positive,  436,  456. 
affidavit  based  on  information  and  belief  not  sufficient  to  show,  351  and  note, 

414,436,437. 
affidavit  of  constable  to  show  in  making  up  verdict,  414. 
affidavit  of  eaves-dropper  as  to  the  same,  ib. 

distinction  between  proof  of  fact  of  misconduct  and  proof  of  its  effect,  438. 
presumption  where  improper  conduct  or  influence  is  shown,  439. 
testimony  of  jurors  not  received  to  impeach  their  verdict  by  showing,  440. 

See  Affidavits  of  Jukoks. 
MISNOMER  OF  JURORS. 

in  the  venire,  74,  300,  301. 
MISTRIAL. 

by  a  jury  of  more  or  less  than  twelve,  5. 

power  to  discharge  jury  without  consent  of  accused,  312. 


708  INDEX. 

MOTION    TO  QUASH. 

for  objections  to  grand  jurors,  541  et  seq. 

plea  in  abatement  the  better  practice,  541,  GST. 

reason  for  this  preference,  542. 

motion  to  quash  for  matter  dehors  the  record,  543,  687. 
MUNICIPAL  COURT. 

jury  whence  summoned,  3  note. 

record  must  show  what  as  to  grand  jury  of,  690. 

NAME.    See  Mlsnomek  OF  Jurors  IN  THE  Venire;  Initial  Letters. 

NEWSPAPERS. 

opinions  formed  by  jurors  from  reading,  207  (2),  214. 
jurors  reading  during  the  trial,  350. 

effect  of  reading  such  as  contain  reports  of  the  trial,  351. 

prejudice  to  be  conclusively  presumed  from  the  reading  of  unfavorable  ed!i- 
torial  comments,  351. 

NEW  TRIAL.     See  Separation  of  Jurors;  Communications  with  Jurors; 
Books  AND  Papers  in  the  Jury  Room;  Refreshment  of  Jurors;  Ver- 
i>ict;  Affidavits  of  Jurors. 
for  a  trial  by  a  jury  of  less  than  twelve  men,  6. 
for  failure  to  summon  special  jurors,  13. 
for  improper  allowance  or  disallowance  of  a  challenge,  250. 
no  exception  in  certain  States  for  improper  allowance  of  a  cliallengc  r 

251, 271. 
for  in-egiilarities  in  selection,  drawing  and  summoning  of  jurors  on  ob- 
jection after  verdict,  295. 
for  irregularities  in  impanelling  on  objection  after  verdict,  296. 
for  misnomer  of  jurors,  300,  301. 
for  presence  of  interloper  on  the  jury,  300,  301. 
for  incompetency  of  jurors  on  objection  made  after  verdict,  302. 
new  trial  not  usually  granted,  302,  305. 
but  may  be  in  discretion  of  court,  302. 
juror  concealing  incompetency  upon  voir  dire,  302  note, 
waiver  of  by  failure  to  interrogate  juror  upon  voir  dire,  302,  303. 
the  theory  of  waiver  examined.  303. 
affidavits  to  support  motion,  275,  .302,  303. 
juror's  affidavit  in  support  of  his  competency,  304. 
affidavits  of  moving  party  insufficient  when  groanded  only  on  information. 

and  belief,  351  and  note, 414,  436,  437. 
misconduct  of  jury  not  always  ground  for,  422. 
prejudice  must  be  shown,  423. 

prejudice  conclusively  presumed  from  tampering  with  the  jury,  424. 
otherwise  where  the  conduct  complained  of  was  innocent,  425. 
what  it  upon  the  wiiole  case  justice  has  been  done,  426. 
effect  of  consent  to  or  acciuiescence  in  irregularity  by  party  or  prisoner,  7,  8, 

9,  339,  359,  427. 
objection  constituting  gi-ound  for  must  be  seasonably  taken,  428. 
whether  order  of  trial  court  granting  or  refusing  a  new  trial  will  be  revised, 

430,431,432. 
how  revised  where  new  trial  has  been  granted,  432. 
mode  in  which  this  discretion  is  revised,  433. 

how  facts  constituting  ground  for  are  brought  to  attention  of  appellate  court, 
4.34. 
by  a  conclusive  finding  of  fact  in  the  court  below,  434  (1). 
by  affidavits  embodied  in  bill  of  exceptions,  434  (2). 
presumption  that  the  jury  acted  regularly,  435. 

distinction  between  proof  of  fact  of  misconduct  and  proof  of  its  effect,  438. 
presumption  where  improper  conduct  or  influence  is  shown,  439. 


INDEX.  769 

NEW  TRIAL— Continued. 

testimony  of  gurors  not  received  to  impeach  their  verdict,  440.    See  Affida- 
vits OF  Jurors. 

misconduct  in  presence  of  court  as  a  ground  for,  456. 
NISI  PRIUS. 

writ  of,  66. 
NOTES  OF  TESTIMONY. 

taken  by  jurors  cannot  be  taken  to  jury  room,  390. 

NUMBER  OF  JURY.     See  Constitutional  Provisions;  Constitutional  Law; 
Waiver;  New  Trial. 

OATH.    See  Swearing  the  jury. 

of  triors  of  challenges  in  civil  and  criminal  cases,  234. 
form  of  oath  for  petit  jurors  in  civil  and  criminal  cases,  289. 
record  need  not  contain,  299. 
form  of  for  early  accusing  body,  465. 
form  of  for  grand  jurors,  593. 
OBJECTIONS  AFTER  VERDICT. 

proceedings  in  procuring  jury  presumed  to  be  correct,  294. 

for  irregularities  in  selection,  drawing  and  summoning  of  Jurors,  295. 

for  irregiilarities  in  impanelling,  296. 

for  defects  In  the  record,  279  et  seq.    See  Record. 

for  misnomer  of  jurors,  300,301. 

that  one  of  the  jurors  was  an  interloper,  309,  301. 

for  incompetency  of  jurors,  302. 

new  trial  not  usually  granted,  302,  305. 

but  may  be  in  discretion  of  court,  302. 

juror  concealing  incompetency  upon  voir  dire,  302  note. 

waiver  of  by  failure  to  interrogate  juror  upon  the  voir  dire,  302,  30S. 

the  theory  of  waiver  examined,  303, 

affidavits  to  support  motion  for  new  trial,  275,  302,  303. 

juror's  affidavit  in  support  of  his  competency,  304. 
for  irregularities  in  proceedings  of  grand  jury,  not  heard,  686. 
OBJECTIONS  TO  GRAND  JURORS.    See  Grand  Jury;  Grand  Jurors. 
by  challenge,  507  et  seq. 

no  case  showing  exercise  of  this  right  at  common  law,  507. 

opinion  of  Serjeant  Hawkins  in  favor  of  the  right,  508. 

this  view  repudiated,  509. 

plea  in  abatement  a  statutory  substitute  for  the  right,  510. 

Serjeant  Hawkins'  view  adopted  by  some  American  courts,  511. 

with  doubts  as  to  challenge  for  favor,  512. 

no  allowance  of  the  peremptory  challenge,  513. 

no  challenges  permitted  by  certain  courts,  514. 

impolicy  of  allowing,  ib. 

who  may  challenge,  515,  516. 

right  of  challenge  to  the  array  as  guaranteed  by  statute,  516. 

who  may  challenge,  516  (1). 

causes  personal  to  summoning  officer,  516  (2). 

causes  affecting  the  regularity  of  the  drawing  or  summoning,  516  (3). 

the  right  of  challenge  to  the  polls  as  guaranteed  Isy  statute,  517. 

challenges  prohibited  by  statute,  518. 

statutory  causes  of  challenge  exclusive,  519. 

objections  to  grand  jurors  how  made  under  such  circumstances,  518, 
519. 

the  statutes  silent  as  to  the  i-ight,520. 

trial  of  challenges,  521, 

grand  jurors  not  sworn  on  the  voir  dire,  ib. 

effect  of  allowance  of  challenge  to  panel  or  polls,  522. 

(51) 


770  INDEX. 

OBJECTIONS  TO  GRAND  JURORS  — Continued. 

denial  of  statutory  right  of  clialleuge  vitiates  indictment,  523. 
by  plea  in  abatement,  5'27  et  seq. 

necessity  for  this  form  of  objection,  527. 

this  want  supplied  bj-  stat.  11  Hen.  IV.,  c,  9, 

whether  this  statute  is  in  affirmance  only  of  the  common  law,  529. 

held  to  be  so  by  some  American  courts,  5:50. 

but  denied  by  others,  531. 

confusion  the  consequence, 532. 

what  may  be  shown  by  plea  in  abatement,  533. 

the  plea  in  abatement  not  favored,  534. 

theiefore  it  must  be  strictly  pleaded, 535. 

Its  functions  impaired  or  abolished  by  statute,  536,  537. 
objections  suggested  by  amicus  cw-iui,  538. 
by  motion  to  quash,  541,  et  seq. 

plea  in  abatement  the  better  practice,  541. 

reason  for  this  preference,  542. 

motion  to  quash  for  matter  dehors  the  record,  543. 
objections  when  made,  645  et  seq. 

under  the  English  practice,  545  (1). 

under  the  statutes  of  the  several  States,  545  (2). 

an  opportunity  of  challenging  to  be  afforded  persons  held  in  custody,  546. 

the  right  may  be  waived,  545  note. 

an  opportunity  of  challenging  to  be  afforded  persons  under  recogni- 
zance, 547. 

bow  in  case  of  one  not  pre^'lously  under  prosecution,  548. 

challenges  to  be  made  before  juror  sworn,  549. 

objections  waived  by  plea  of  not  guilty,  .550. 

otherwise  as  to  objections  apparent  of  record,  551. 
objections  to  the  panel,  553  et  seq. 

same  rules  apiilied  as  In  case  of  petit  jury,  553. 

but  with  even  less  sti'ingency,  554. 

pi-eparation  of  jury  list  by  other  than  statutory  oflticers,  5o5  (1) . 

perfect  list  cannot  be  demanded,  .555  (2). 

nor  that  the  list  be  certified,  555  (3). 

certificate  when  conclusive,  555  (4). 

grand  jurors  mvist  be  drawn  from  grand  jury  list,  55G  (1). 

custody  of  jury  wheel,  556  (2). 

presence  of  officers  at  the  drawing,  556  (3). 

whether  statutory  time  of  drawing  is  directory  556  (4). 

whether  statutorj^  number  of  panel  is  directory,  5.56  (5) . 

grand  and  petit  jury  panels  may  be  drawn  simultaneously,  556  (6). 

certificate  to  the  dra^^ing,  556  (7). 

drawing  anew,  556  (8). 

the  panel  must  be  summoned  as  grand  jurors,  .557  (1). 

statutory  time  of  summoning  directory,  557  (2) . 

defects  in  gi-and  jury  process,  557  (3). 

venire  without  seal,  i6> 

no  order  for  venire,  ib. 

Imperfect  sealing,  ib. 

christian  names  indicated  by  initial  letters,  557  (3). 

no  process;necessarj',  557  (4). 

substitute  for  sheriff  as  summoning  officer,  557  (5). 

siibstitutes  for  regular  grand  jurors,  558. 

interloper  upon  the  panel,  ib. 

"  nomination  "  of  grand  jurors,  5.59. 

amendment  of  officers  return,  560. 
objections  to  the  polls,  563  et  seq. 

grand  jurors  irrima  facie  competent,  .563. 
alienage,  564. 


INDEX.  771 

OBJECTIONS  TO  GRAND  JURORS  —  Continued, 
not  a  freeholder,  505. 
obnoxious  occupation,  5G6  (1). 
rebellion  against  the  general  government,  566  (3). 
party  to  a  pending  suit,  566  (3). 
juror  not  of  selected  list,  567. 
prior  service,  568. 

consanguinity  and  aflinlty  to  defendant,  569. 
public  interest,  570. 
private  interest,  571. 

charge  against  one  of  the  grand  jury,  ib. 
contribution  for  suppression  of  crime,  572. 
conscientious  scruples  against  capital  punishment,  573. 
expression  of  opinion,  574. 

PANEL.    See  Drawing  the  Panel;  Summoning  the  Panel;  Service  of  Panel 
UPON  THE  Accused;  Challenge  to  the  Panel. 

PEREMPTORY  CH^iLLENGES. 

defined,  153. 

in  what  cases  allowed  at  common  law,  154. 

to  what  number,  ib. 

the  right  how  affected  by  early  English  statutes,  155. 

the  right  not  restricted  to  capital  cases,  156. 

allowed  in  clergyable  felonies,  ib. 

allowed  in  cases  of  misprison  of  treason,  ib. 

not  allowed  upon  trial  of  collateral  issues,  156, 160.  ' 

can  be  taken  away  only  by  the  express  terms  of  a  statute,  156. 

penalty  for  making  more  challenges  than  allowed  by  law,  157. 

unlimited  right  of  peremptory  challenge  by  crown  at  common  law,  158  (1). 

Stat.  4,  33  Edw.  I.  curtailed  this  right,  158  (1). 

right  of  the  crown  under  this  statute  to  stand  jurors  aside,  158  (1). 

this  right  belongs  to  the  government  in  this  country,  158  (2). 

how  after  peremptory  challenges  have  been  restored  to  the  government,  ib. 

the  right  of  peremptory  challenge  not  a  right  to  select,  159. 

not  allowed  in  case  of  special  jurors,  161,  280. 

defendants   jointly   indicted,  each  entitled   to  his  peremptory  challenges, 

162  (1). 
imless  they  consent  to  join  In  their  challenges,  162  (2). 
number  allowed  the  prosecution  against  joint  defendants,  102  (4). 
right  of  joint  defendants  how  affected  by  statute,  162  (5). 
peremptory  challenges  granted  by  statute  in  civil  cases,  163,  165  (2). 
in  such  cases,  joint  plaintiffs  and  defendants  must  join  in  challenging,  103. 
a  distinction  taken  on  this  point  in  Michigan,  ib. 
peremptory  challenges  m  Federal  courts,  164. 
power  of  the  legislature  over,  105  (1). 
how  this  has  been  exercised,  165  (2)  and  (3). 

sketch  of  the  statutory  provisions  in  each  State,  165  (4)  et  seq.  I  "■'■■  '^'W,*"?^ 
bastardy  proceeding,  a  civil  suit  for  the  purpose  of  peremptory  challenges, 

106  (1). 
so  held  in  a  proceeding  for  the  violation  of  a  municipal  ordinance,  166  (IT. 
but  a  proceeding  in  rem  held  to  be  of  a  criminal  nature,  166  (1). . 
other  cases  of  construction,  166  (1)  and  (2). 
no  presumption  of  bias  in  consequence  of,  192. 
Avhether  this  challenge  must  pi'ecede  challenges  for  cause,  266  (2). 
waiver  of  by  failure  to  challenge  in  turn,  269  (5). 
no  right  of  after  acceptance  of  juror,  269  (6). 
a  contrary  view,  269  (7). 
whether  a  party  is  ever  bound  to  challenge  peremptorily  to  cure  error  of 

court,  270  (1)  and  (2). 


772  INDEX. 

I'EHKMPTORY  CHALLENGES  — Continued. 

improper  disiillowance  of  good  cause  of  cluillengo  cured  by  challcugiug  per- 
emptorily, '276  (3). 
unless  peremptory  challenges  are  subsequently  exhausted,  276  (4). 

TERJUKY. 

before  the  grand  jury,  706  ('2). 

PLEA  IX  ABATEMENT. 

a  statutory  substitute  for  objection  by  challenge  to  grand  jurors,  510.    See 

OUJECTIONS  TO  GllANU  JUliORS. 

PLEADINGS. 

may  be  taken  to  jury  room,  387. 

PRECEi'T. 

jurors  summoned  upon  for  sessions  of  justices  of  goal  delivery,  60  and  note, 
distinction  between  and  venire  in  New  York,  71. 
PRELIMINARY  EXAMINATION.    See  Indictment. 

PETIT  JURY. 

must  consist  of  twelve  men,  5  et  seq. 

PRESENTMENT.     See  GRAND  JURY, 
defined,  605. 

proceedings  by  indictment  preferable,  606. 
this  form  of  accusation  fallen  into  disuse,  ib. 
upon  knowledge  of  grand  jury,  614,  644. 

-what  constitutes  "  knowledge"  of  the  grand  jury,  614  (1),  617,  642  note, 
whether  presentment  need  be  signed  by  all  of  the  grand  jurors,  606,667  note 

TRESUMPTION  OF  REGULAR  ACTION. 

■where  record  contains  names  of  eleven  jurors  onlj',  6  note, 
by  ofticera  charged  with  drawing  the  panel,  63. 
by  shei'iff  who  returns  a  venire  as  executed,  78,  80. 
in  the  process  of  impanelling,  294,  586. 
by  the  jury,  435. 

PRIVATE  PROSECUTOR. 

free  access  to  grand  jury  by  in  England,  609,  629. 

not  allowed  to  communicate  with  grand  jury  in  certain  jurisdictions,  614  (2). 
such  communications  punishable  as  contempts  of  court,  614  (3). 
indorsement  of  name  of  upon  indictment,  683. 

policy  of  statutes  requiring,  683  (1). 

Indorsement  bj'  whom  made,  683  (2), 

necessity  of,  683  (3). 

who  may  be  a  private  prosecutor,  683  (4). 

form  of  indorsement,  683  (5). 

objection  tor  want  of  prosecutor,  683  (6). 
testimony  of  grand  juror  to  show  who  was,  705. 

PROBI  ET  LEGALES  HOMINES, 
who  are,  26  note,  170,  176,  577. 
jurors  presumed  to  be,  262,  690. 

PROFESSIONAL  JURORS.| 

animadversions  upon,  35  note,  98  note,  '260. 
statutes  aimed  at,  84, 102, 183. 

PROSECUTING  OFFICER. 

grand  jury  may  And  indictment  during  vacancy  in  office  of,  595. 

grand  jury  may  apply  to  for  advice,  599,  634. 

power  to  exclude  from  grand  jury  room,  630. 

charges  preferred  to  grand  jury  by  him  c.c  officio,  613. 

admitted  to  grand  jury  room  in  some  jurisdictions,  632. 

excluded  from  in  others,  633.  ^ 

liired  i^rosecutors  excluded,  ib. 


INDEX.  773 

PROSECUTING  OFFICER  — Continued. 

presence  of  prosecuting  ofHcer  in  jury  room  how  affected  by  statutes,  634. 

witnesses  before  grand  jury  called  in  discretion  of,  G-10. 
PROSECUTOR.    See  Private  Prosecutor. 

QUALIFICATIONS  OF  JURORS, 
freehold  at  common  law,  21. 
constitutional  provisions  as  to,  22,  25. 
may  be  prescribed  by  legislature,  22  et  seq. 
what  prescribed  in  the  several  States,  26. 

statutes  limiting  jury  duty  to  white  persons  unconstitutional,  26,  27. 
of  jurors  in  Federal  courts,  ol,  51. 

colored  persons  competent,  49. 
lack  of  a  ground  of  challenge,  174.    See  Challenges  for  Cause. 
of  grand  jurors,  480  e<  seq. 

at  common  law,  480. 

under  American  statutes,  481. 

in  Federal  courts,  482. 
QUASH.    See  Motion  to  Quash. 

RE-CALLING  THE  JURY. 

may  be  done,  355, 401. 

additional  instructions  may  be  given,  357,  359. 
counsel  must  have  notice  to  attend,  357. 
RECORD. 

consists  of  what,  434  (2). 

must,  in  general,  show  what,  327. 

effect  of,  showing  trial  by  jury  of  less  than  twelve  men,  6,  297. 

need  not  show  affirmatively  that  a  copy  of  the  panel  was  served  upon  the 

accused,  122. 
misdirection  of  triors,  or  refusal  of  court  to  admit  competent  evidence  should 

be  entered,  250. 
must  show  grounds  of  challenge,  253,  294,  note. 

need  not  show  grounds  upon  which  jurors  were  excused,  259  (1)  note, 
need  not  contain  names  of  jurors,  297. 
must  show  the  fact  of  swearing,  298. 
need  not  recite  the  terms  of  the  oath,  299. 

but  a  recital  must  correspond  with  the  statutory  form,  299  and  note, 
misnomer  of  jurors  in,  300. 
from  silence  of,  appellate  coui't  will  presume  that  accused  was  held  to  answer 

at  time  of  impanelling  grand  jury,  545  note, 
order  for  venire  need  not  appear  of,  72. 

need  not  show  that  jurors  were  admonished  as  to  their  duties  upon  separa- 
tion, 318  (3),  327. 
whether  record  of  former  suit  or  proceeding  may  be  taken  to  jury  room, 

383  (4). 
of  coroner's  inquest  can  not,  .386  (1),  note. 

what  must  be  shown  as  to  constitution  and  proceedings  of  grand  jury,  GSS* 
et  seq. 

caption  of  indictment  contains  what,  689. 

qualifications  of  grand  jurors,  690. 

drawing,  summoning  and  impanelling,  691. 

number  of  jurors  finding,  692. 

their  names,  693. 

appointment  of  foreman,  694. 

the  swearing,  695. 

return  of  indictment  must  explicitly  appear,  696  (1). 

how  in  case  of  presentment,  696  (2). 


774  INDEX. 

UECORD  —  Continued. 

amendment  of  record  to  show  return,  696  (3). 
filing  of  indictment,  697. 
names  of  witnesses,  698. 
REFRESHMENT  OF  JURORS. 

none  allowed  under  tlie  old  law,  310,  326,  334. 

provided  in  modern  trials,  370. 

may  be  provided  for  jury  attended  by  sworn  ofliccr,  321  note. 

separation  of  jury  during  taking  of,  340  (1),  341  (1). 

at  expense  of  successful  party  avoids  the  verdict,  371  note,  372  (1),  377  note. 

so  as  to  entertainment  of  jurors  or  tlieir  horses  by  counsel,  372  (2). 

ordinary  hospitalitj'  and  civilities  may  be  extended  to  Jurors  by  a  partj'  in 
some  jurisdictions,  373,  375,  378  (6). 

but  not  in  others,  374,  37-J. 

unusual  civilities  nowhere  tolerated,  376. 

entertainment  by  unsuccessful  party  does  not  affect  verdict,  377. 

whether  drinking  of  Intoxicating  liquors  by  jurors  avoids  the  verdict,  378. 

moderate  use  In  most  jurisdictions  does  not,  378  (2)  and  note. 

jurors  drinking  spirituous  liquor  wliile  sitting  as  such,  378  (3). 

drinking  attended  with  otlier  circumstances  of  misconduct,  378  (4). 

drinking  at  expense  of  prevailing  party,  376,  378  (.5). 

drinking  at  expense  of  counsel  for  prevailing  party,  378  (2)  note,  378  (5). 

"treating"  the  jury,  .376,  378  (6). 

the  correct  rule  suggested,  378,  (7). 
REMOVAL   OF  CAUSES. 

to  Federal  court  for  denial  of  constitutional  rights,  27,  29,  30. 
RESIDENT. 

■who  is,  174  (2). 
RETURN  OF  SHERIFF.    See  Venire. 

amended  to  show  service  of  panel  upon  the  accused,  121. 

amendment  of  upon  summoning  of  grand  jurois,  500. 

SEALED  VERDICT. 

returned  as  a  subterfuge  to  procure  separation,  316,  335. 
may  be  returned  in  cases  of  misdemeanor,  317. 
may  be  returned  in  civil  cases,  333,  334. 
but  not  in  cases  of  felony,  334. 

jurors  must  be  present  at  the  time  of  delivery  into  court,  334,  338. 
•dangers  in  returning  sealed  verdicts,  335. 
amending,  336. 

what  if  juror  dissents  from  sealed  verdict,  337. 
delivery  of  verdict  into  court,  338. 

communication  with  juror  after  agreeing  to  a  sealed  verdict,  harmless,  349 
(1)  note. 

SECRESY. 

sessions  of  grand  jury  how  far  secret,j;29  et  seq. 
obligation  of  secresy  resting  upon  grand  jurors,  701  et  seq. 

SELECTION  OF  JURORS.    See  Challenge  to  the  Array. 
in  discretion  of  sheriff  at  common  law,  44. 
sheriff  has  common  law  powers  in  New  Jersey,  45. 
preparation  of  jury  list  in  the  United  States,  43,  45. 
this  duty  performeu  by  whom,  45. 

judges  of  general  election,  45  (2). 

town  ofBcers,  45  (3). 

special  boards,  45  (4). 

jury  commissioners,  45  (5). 

county  courts,  45  (6). 
penalty  for  neglect  to  make  juiy  list,  45. 
statutes  regulating  director     47. 


INDEX.  775 

SELECTION  OF  JURORS —  Continued. 

in  Federal  courts  under  section  800  of  the  Revised  Statutes,  48. 

rule  of  court  necessary  to  adopt  tlie  State  practice,  50. 

discretionary  power  of  court  over,  5'2  (1). 

jury  list  made  by  marshall  and  clerk,  52  (2). 

persons  who  might  advise  in  the  preparation,  52  (3). 

number  of  the  jury  list,  52  (4). 

marshall  had  not  common  law  powers  of  sheriff,  52,  (6). 
In  Federal  courts  under  the  Act  of  IST'J,  49. 

by  the  clerk  and  a  jury  commissioner  of  opposite  political  party,  ib. 
In  Territorial  courts,  53. 
of  grand  jurors,  483. 

at  common  law  and  under  6  Geo.  IV.,  c.  50,  483  (1). 

in  the  United  States  from  the  general  jury  list,  483  (2). 

separate  gi-and  jury  list,  483  (3). 
grounds  of  objection  to  panel  of  grand  jurors  for  irregularities  in  preparation 
of  jury  list,  555. 
SEPARATION  OF  JURORS. 

absolutely  i^rohibited  under  the  old  law,  310,  334. 

relaxation  of  this  strictness,  310. 

no  separation  in  cases  of  treason  and  felony,  310. 

distinction  between  power  to  permit  jury  to  separate  and  power  to  adjourn, 

311. 
distinction  between  power  to  permit  jury  to  separate  and  power  to  discharge 

them,  312. 
separation  a  ground  for  a  new  trial,  ib. 
but  not  always,  313. 

presumption  arising  from  unauthorized  separation,  313. 
jurors  usually  permitted  to  separate  in  civil  cases,  314. 
may  separate  during  deliberations,  314,  318  (6). 
may  not,  318  (5). 

unauthorized  separation  not  per  se  a  ground  for  a  new  trial,  315. 
single  juror  absenting  himself  may  be  punished  for  contempt,  ib. 
but  not  perse  ground  for  new  trial,  316,  318  (4),  318  (9). 
may  be  where  separation  is  protracted,  318  (9),  341  (1). 
a  contrary  view,  320. 

how  in  case  separating  juror  is  attended  by  a  sworn  officer,  320,  330,  340  (1). 
separation  coupled  with  circumstances  of  abuse  a  ground  for  a  new  trial, 

316. 
may  be  authorized  in  cases  of  misdemeanor,  317. 
and  in  some  States  in  cases  of  felony,  818. 
in  some  States  prejudice  will  not  be  presumed  from  separation  in  cases  of 

felony,  318,  332  (2). 
a  contrary  rule  in  others,  318  (10),  328. 

ii  distinction  in  this  regard  between  capital  and  other  felonies,  331. 
prejudice  conclusively  presumed  in  some  States,  319  (2),  331,  341  (1). 
separation  with  consent  of  prisoner  in  cases  of  felony,  318  (3)  and  (7). 
separation  without  consent  of  prisoner  in  cases  of  felony  vitiates  verdict,  318 

(9). 
absolute  isolation  not  required,  320. 
may  separate  in  charge  of  sworn  officer,  320,  321,  3^0. 
affidavits  of  jurors  to  show  separation  to  have  been   without  prejudice,  318 

(9),  329,  330,  340,  341  (1)  and  (2). 
after  being  impanelled,  296  note,  332  (1). 

after  being  impanelled  and  sworn,  but  before  evidence  introduced,  332  (1). 
after  retiring  to  deliberate  upon  the  verdict,  332  (2). 
after  returning  sealed  verdicts.    See  Sealed  VEuDICTS. 
consent  of  party  or  prisoner  to  separation,  339. 

not  to  be  asked  in  cases  of  felony,  ib. 

may  be  tendered  voluntarilj-,  ib. 


776  INDEX. 

SEPARATION  OF  JUROKS  — Continued. 

consent  of  counsel,  339. 
instances  where  new  trail  was  refused,  340  (1)  and  (2). 

jurors  eating  at  separate  tables, 310  (I). 

jurors  sleepiiifT  in  separate  rooms,  ib. 

jurors  eatiut,'  in  public  dining  hall,  ib. 

juror  separating  for  change  of  linen,  ib. 

juror  seiiarating  to  give  orders  to  servant,  »6. 

juror  separating  for  a  necessary  purpose,  340  (1),  340  (-2). 

juror  separating  to  buy  a  cigar,  340  (1). 

juror  separating  to  get  shaved,  340  (i). 
instances  where  new  trial  was  granted,  341  (1)  and  (2). 

juror  separating  momentarily,  341  (1). 

juror  separating  for  a  protracted  period,  ib. 

jurors  dining  at  public  table,  ib. 

separation  after  trying  one  of  several  indictments  against  prisoner,  341 

(2). 
separation  during  recess  from  Saturday  to  Monday,  ib. 
record  need  not  show  that  jurors  were  admonished  as  to  their  duties  during, 
318  (3),  327. 
SERVICE  OF  PANEL  UPON  THE  ACCUSED, 
at  common  law,  108. 
under  early  English  statutes,  10!t. 
under  statutes  in  this  country,  110. 
policy  of  these  statutes.  111. 

some  of  these  statutes  evidently  mandatory,  113. 
others  not  so,  113. 
list  must  be  demanded,  ib. 
list  of  talesmen  cannot  be  demanded,  114. 
service  maj'  be  made  earlier  than  as  provided  by  stat\;te,  115. 
the  full  panel  need  not  attend,  116. 
talesmen  may  be  called  to  supply  a  deficiency,  ib. 
imperfections  in  the  list  as  served,  115, 117. 
in  general,  prejudice  must  be  shown  to  result  from,  117. 
effect  of  list  containing  names  of  persons  not  summoned,  ib. 
objections  to  caption  and  form  of  list,  118. 
computation  of  time  as  to  service,  120. 

SHERIFF. 

must  be  an  indifferent  person  at  common  law,  130  and  note. 

othervf  ise  under  our  statutes,  130  and  note. 

selected  and  summoned  jui-ors  in  his  discretion  at  common  law,  44. 

number  of  panel  summoned  originally  in  his  discretion,  79. 

coroner  when  a  proper  substitute  for,  as  summoning  officer,  82,  557  (5). 

court  may  direct  deputy  to  perform  duties  of,  in  summoning  talesmen,  6?. 

talesmen  summoned  in  discretion  of,  94,  551. 

powers  of  under  English  Consolidated  Jury  Act,  127. 

has  no  power  to  excuse  jurors,  259  (1),  558. 

duties  of,  concerning  sheriff's  jury,  358. 

SHERIFF'S  JURY. 

sheriff  may  not  privately  communicate  with,  358. 

rules  in  regard  to  misconduct  of  trial  juries  in  courts  generally  applicable  to, 
429. 
SPECIAL  JURY, 
origin  of,  12. 
under  the  English  practice,  13  (1). 

application  for,  ib. 

selection  of,  ib. 

Jury  sti-uck  must  try  the  issue,  13  (2). 

non-attendance  of  particular  jurors,  13  (3). 


INDEX.  777 

SPECIAL  JURY  — Continued. 

costs  of,  13  (4.) 
under  the  American  practice,  14. 
granted  in  what  cases,  14  (1). 

statutory  provisions  as  to  striking  mandators',  14  (2). 
challenges  before  striking,  ib. 

jurors  nmst  have  general  as  well  as  special  qualifications,  14  (3). 
costs  of,  14  (4). 
talesmen  may  be  summoned  to  supply  a  ijeflciencj'  in,  103. 
struck  juror  may  be  excused,  259  (1). 
for  trial  of  issue  out  of  chancery,  3. 
SPECIAL  GKAXD  JURY.    See  Gkand  Jury. 
SPECIAL  VENIRE. 

for  jurors  in  a  capital  case,  1,  73,  80, 114, 116. 
-waiver  of,  80  (1). 
defects  in  order  for,  80  (1)  note, 
how  drawn,  80  (2). 
grounds  for  quashing,  SO  (3). 

non-attendance  of  particular  veniremen  no  ground,  80  (4). 
time  for  objecting  to,  80  (4). 
excusing  jurors  of  special  venire,  259,  (1). 
to  sit  in  the  particular  case,  270. 
for  failure  of  the  regular  panel  to  attend,  81  (1) ,  147. 
to  supply  a  deficiency,  101. 

upon  the  allowance  of  a  challenge  to  the  array,  81  (1). 

upon  the  discharge  of  the  panel  by  the  court  of  its  own  motion,  81  (2),  270. 
in  Indiana  summoned  whenever  the  business  of  the  court  requires  it.  81  (3). 
jurors  must  be  summoned  as  prescribed  by  law,  81  (4). 
variance  between  order  for  and  copy  of,  81  (5). 
jurors  summoned  "  from  the  body  of  the  county,"  81  (G). 

special  venire  for  grand  jurors  issued  without  authority  vitiates  indictment, 
551,557  (4). 
STANDING  JURORS  ASIDE.    See  Peremptory  Challenges. 
STRUCK  JURY.    See  Special  Jury. 

SUMMONING  THE  PANEL.    See  Venire;  Challenge  to  the  Array. 
at  common  law. 

jurors  originally  summoned  to  Westminster  Hall,  66  (1). 

afterwards  to  the  country  assizes,  66  (2). 

the  writ  of  nisi  prius,  ib. 

panel  arrayed  four  days  before  the  session,  in  civil  cases,  66  (3). 

for  this  reason  the  clause  of  nisi  prius  taken  out  of  the  venire  and  put  in 

distringas,  66  (4) . 
jurors  summoned  for  sessions  of  justices  of  goal  delivery,  upon  a  precept 

to  sheriff,  66  (5)  and  note, 
names  upon  the  panel  kept  secret,  66  (3)  note, 
number  to  he  summoned  within  discretion  of  the  sheriff,  79. 
but  later  limited  to  twenty-four  by  statute,  ib. 
this  statute  lield  inapplicable  to  criminal  trials,  i6. 

in  such  cases  tlie  court  orders  as  numerous  a  panel  as  the  case  may  re- 
quire, ib. 
under  statutes  in  this  counti-y,  69  et  seq. 

number  to  be  summoned  usually  fixed  by  statute,  79  (1)  and  (2). 
effect  of  summoning  more  than  directed  by  law,  79  (2). 
fuU  panel  need  not  attend,  79  (3). 
number  in  case  of  persons  jointly  indicted,  79  (4). 
fines  for  non-attendance  of  jurors,  83. 

under  the  English  consolidated  jui-y  act,  83  (1). 
under  statutes  of  the  several  States,  83  (2). 
exempt  person  when  summoned  must  appear  and  show  his  exemption,  83  (3). 


778  INDEX. 

SUMMONING  THE  JURY  —  Continued. 

provisions  ayalnst  fraud  in  return  of  jurors,  84  (1). 
statutes  aimed  at  professional  Jurors,  84  (i). 
of  grand  jurors,  486 

grounds  of  objection  to  panel  of  grand  jurors  for  irregularities  in  summon- 
ing, 557. 
SWEARING  THE  JURY, 
time  for  swearing,  286. 

as  each  juror  is  accepted,  269  (1),  287,  291. 

not  until  the  whole  twelve  are  procured,  269  (2),  287,  291. 
statutory  form  of  oath  must  be  used,  288. 
form  of  oath,  28y. 

at  common  law  in  ci^al  and  criminal  cases,  ib. 

in  case  of  a  default,  ib. 

in  suits  upon  penal  bonds,  ib. 
swearing  for  the  term,  290. 

reswearing  after  amendment  of  pleadings,  etc.,  292. 
when  the  oath  is  begun,  265. 
waiver  of  Informality  in,  286,  288,  290. 
as  to  swearing  the  gi-and  jury,  see  Grand  Jury. 

TALESMEN. 

when  summoned,  90. 

summoned  from  the  bystanders,  ib. 

early  history  of  the  practice  of  summoning,  91. 

power  of  summoning  usually  incident  to  courts  of  record,  ib. 

neeessitj-  of  summoning  to  be  avoided,  92. 

summoned  to  supjily  a  deficiency  only,  93. 

summoned  in  discretion  of  sheriff,  94. 

sheriff  may  submit  to  direction  of  court,  95. 

number  to  be  summoned  rests  in  discretion  of  the  court,  96. 

to  sit  only  in  particular  cases,  97. 

may  be  assembled  in  anticipation  of  emergency,  98. 

not  to  be  interrogated  for  causes  of  challenge  bj-  summoning  officer,  99. 

qualifications  of,  100. 

must  be  objected  to  before  they  are  sworn,  ib. 

array  of  may  be  challenged  when,  101. 

special  oath  to  be  administered  to  officers  in  Texas  before  summoning,  102. 

may  be  summoned  to  supply  deficiency  on  a  special  jury,  102. 

talesmen  in  Federal  courts,  104. 

talesmen  called  to  supply  a  deficiency  in  the  panel  as  served  upon  the  pris- 
oner, 116. 

a  list  of  such  talesmen  cannot  be  demanded,  ib. 

to  supply  deficiency  in  special  venire,  80. 
.  coui't  may  direct  deputy  to  perform  duties  of  sheriff  in  summoning  when,  82. 

as  to  tales  grand  jurors,  see  Grand  Jurors. 
TAMPERING  WITH  JURIES.    See  Communications  with  Jurors. 
TAX  PAYER. 

who  is,  174  (6). 

TELEGRAMS. 

power  of  grand  juiy  to  compel  production  of,  618. 

TERRITORIAL  COURTS. 

juroi's  in  Federal  cases  procured  according  to  the  laws  of  the  Territory,  53, 
583  (3). 
TREATING  THE  JURY.    See  Refreshment  of  Jurors. 

TRIAL  OF  CHALLENGES. 

by  the  court  and  by  triors,  126. 


INDEX.  779 

TRIAL  OF  CHALLENGES— Continued. 

the  court  determined  principal  causes  of  challenge,  ib. 

the  triors  causes  going  to  the  favor,  ib. 

this  tribunal  how  constituted,  171,  234. 

oath  of  the  triors,  ib. 

triors  to  examine  all  questions  of  fact,  235. 

finding  of  the  triors  conclusive,  126,  l.i2,  205,  237,  at7  (2),  266  (1). 

the  court  as  a  substitute  for  trior's,  238, 249,  251. 

the  court  now  generally  tries  all  challenges,  172, 

court  cannot  charge  the  triors  as  to  the  effect  of  the  evidence,  205,  23R,  237, 

247  (2). 
disagreement  of  triors,  239. 
no  argument  of  counsel  before  triors,  264  note, 
mode  of  challenging,  231. 

challenge  to  the  array  to  be  in  writing,  that  of  the  polls  verbal,  231  notes, 
ground  of  challenge  must  be  stated,  231, 242. 
proceedings  upon  challenges,  232. 

decision  of  courts  upon  may  be  reviewed  on  appeal,  232  and  note, 
form  of  challenge  immaterial  where  court  tries  both,  233  note, 
burden  of  proof,  240. 
jnrovs  prima  facie  competent,  262. 

juror  challenged  may  be  examined  upon  the  voir  dire,  241. 
examination  generally  under  oath,  i6. 
otherwise  in  Connecticut,  ib. 
court  may  conduct  the  examination,  241,  242. 
parties  may  consent  to  examination  not  under  oath,  242. 
a  challenge  precedes  examination,  ib. 
qualifications  of  this  rule,  ib. 
province  of  court  upon  examination,  243. 
attitude  of  juror  and  witness  dissimilar,  i6. 
jurors  to  be  examined  singly,  244. 
what  questions  maybe  put,  243. 
what  questions  may  not,  245. 
questions  tending  to  degrade  the  juror,  245  (1). 
questions  eliciting  expressions  of   opinion  that  the  accused  is  guilty, 

245  (2). 
questions  eliciting  expressions  of   opinion  on  the  merits  in  civil  cases 

245  (3). 
<luestions  as  to  conscientious  scruples,  219,  245  (4). 
questions  as  to  political,  religious  or  race  prejudice,  245  (5). 
questions  as  to  prejudice  against  an  unlawful  business, 245  (6). 
questions  as  to  prejudice  against  the  enforcement  of  a  law,  219. 
form  of  question,  246. 
hypothetical  questions  rejected,  ib. 
questions  other  than  as  prescribed  by  statute,  247. 
questions  upon  a  challenge  to  the  favor,  ib. 
irrelevant  questions,  248. 
trial  of  challenges  for  '■  implied  bias"  and  "  actual  bias,"  249. 
remedy  for  improper  granting  or  refusing  of  a  challenge,  250,  271. 
refusal  of  court  to  appoint  triors,  250. 
misdirection  of  the  triors,  250. 
exclusion  of  competent  evidence,  236,  250. 

no  exception  in  certain  States  for  improper  allowance  of  a  challenge,  251. 
in  Kentuclrj'no  excption  in  any  case,  251. 
whether  an  exception  lies  to  decision  of  court  upon  a  challenge  to  the  favor* 

261. 
revisoi-j-  power  of  appellate  court  to  be  cautiously  exercised,  252. 
record  must  show  grounds  of  challenge,  253,  294  note, 
of  challenges  to  grand  jurors,  521. 


780  INDEX. 

TRIORS.    See  Trial  of  Challenges. 

VENIRE. 

served  upon  town  and  city  officers  in  New  England,  59. 
technical  accuracy  required  in  at  common  law,  G7,  6S. 
otherwise  under  our  sj'stem  of  procuring  jurors,  6S,  70. 
distinction  between  venire  aiid  precept  in  New  York,  71. 
order  for  venire  need  not  appear  of  record,  72. 
under  our  system  of  procuring  jurors,  69. 
unimportant  defects  in,  70. 

style  of  writ,  74  (1). 

officer  to  whom  directed,  74  (2). 

mandatory  clause,  74  (.!). 

enumeration  of  qualifications  of  jurors,  74  (4),  4SG  note. 

misnomer  of  jurors,  74  (.5;. 

omission  of  juror's  name,  295  note,  480  note. 

without  seal,  70. 
defects  cured  by  statute,  29.)  note,  301,  518  note. 

motion  to  quash  for  disqualification  of  particular  jurors  not  allowed,  75,  80. 
whether  venire  must  be  for  statutory  number,  47  note,  143  (2). 
time  of  issue  and  return  directory,  76. 
time  for  objection  to,  ib. 
service  by  wrong  olHcer  no  objection,  77. 
return  of,  78  et  seq. 

an  essential  duty,  78  (1). 

omission  supplied  by  order  upon  officers  to  make,  78  (1),  560. 

juror  may  serve,  although  omitted  in  the  "-eturn,  78  (1). 

neglect  of  officer  to  sign,  78  (2). 

time  for  making  return  directory,  76,  78  (3). 

defects  in  body  of  return,  78  (4). 

to  be  looked  at  "  with  the  eyes  of  common  sense,"  78  (4). 

oath  of  persons  summoned  may  supply  omissions  in  return,  78  (1). 

grounds  of  objection  to  panel  of  grand  jurors  for  irregularities  in  grand 
jury  process,  557  (3). 
VENIRE  DE  NOVO. 

for  improper  allowance  or  disallowance  of  a  challenge,  250. 
no  exception  in  certain  States  for  improper  allowance  of  a  challenge,  251,  271. 
VERDICT.    See  Sealed  Verdict;  Objections  after  Verdict. 
delivery  and  reception  of,  338. 
by  lot,  illegal,  408. 
as  to  quotient  verdicts,  409. 

quotient  verdicts  illegal  only  when  adopted  by  a  previous  agreement,  410. 
subsequent  assent  to  does  not  render  valid  in  such  a  case,  411. 
the  expediency  of  such  computations  denied  and  defended,  412. 
cases  within  the  rule,  413. 
misconduct  of  jury  in  making  up  a  chance  verdict  how  shown,  411. 

generally  not  by  affidavits  of  jurors,  ib. 

exception  in  Tennessee  and  Kansas,  ib. 

affidavit  of  constable  having  jury  in  charge  admissible,  ib. 

subject  to  contradiction  by  affidavits  of  jurors,  ib. 

paper  found  in  jury  room  with  computations  showing  verdict,  ib. 

affidavit  of  eavesdropper,  ib. 

affidavit  as  to  what  jurors  have  said  as  to  manner  of  making  up  their 
verdict,  414  note. 

affidavits  of  jurors  admissible  under  statutes  to  show  a  chance  verdict, 
415. 

such  affidavits  must  be  voluntarj',  ib. 

quare:  whether  a  quotient  verdict  is  a  chance  verdict,  ib. 
experiments  to  detei-mine,  416. 
private  search  of  jurors  for  evidence,  354, 383  (4),  417. 


INDEX.  ^^^ 

VERDICT— Continued. 

compromise  verdicts,  718.  co„  apftdavits  OF 

atHdavits  of  jurors  not  admissible  to  impeacli,  440  et  seq.    See  Afi  idavits  of 

com-t  may  interrogate  jurors  as  to  ground  of  tbeir  finding,  444. 
affidavits  of  jurors  admissible  to  sustam,  446. 

VICINA(iE. 

jury  of  the,  1. 
YISNE.    See  Vicinage. 
TOIR  DIRE.    See  Trial  of  Challenges. 

VOTER. 

who  is,  174  (3). 

WAIVER. 

of  full  jury  in  cases  of   felony,  7. 

of  full  jury  in  caues  of  misdemeanor,  9. 

of  full  jury  in  civil  cases,  8. 

of  privilege  of  exemption,  40,  481  note. 

of  special  venire  in  capital  case,  80. 

of  objections  to  special  ve7iire  by  going  to  trial,  bO. 

of  exception  for  refusal  of  court  to  ask  certain  questions  of  jutoi  upon  voir 

of'obieSlons  to  jur«r  Icnown  to  be  subject  to  challenge,  259  (1).263.  .75  (2). 

of'objections  to  the  panel  by  failure  to  challenge  the  array,  261. 

of  challenge  to  the  array  by  challenging  to  the  polls  266  (1.-5  (1). 

of  peremptory  challenge  by  failure  to  challenge  in   ux^  269  (o) . 

of  error  of  court  in  disallowance  of  challenge  by  challenging  peiemptoiuy. 

of'iriSuT^ly'iu  impanelling  by  failure  to  object  at  the  time,  97  296. 

of  causes  of  challenge  by  failure  to  take  at  the  proper  time,  100  101.  30-  .0.. 

of  right  to  have  a  coW  o^  the  panel  before  trial  by  not  demanding  it.  113. 

by  going  to  trial  without  it,  119. 
of  informality  in  swearing  the  jury.  286,  288,  290.  ,         gg^  351 

Of  misconduct  of  juror  during-  the  trial  by  not  objecting  at  the  time,  350,  351, 

383  (5),398,  427,  456. 
Of  objections  not  made  until  after  verdict,  295  et  seq. 

as  to  irregularities  in  selection,  drawing  and  summoning  of  juiois,  .95. 

301. 

as  to  irregularities  in  impanelling,  296. 

as  to  incompetency  of  jurors,  302. 

waiver  of  by  failure  to  interrogate  juror  upon  voir  dire.  30-,  303. 

the  theory  of  waiver  examined,  303. 
not  alwavs  presumed  from  passive  acquiesence,  359. 
duty  of  party  or  counsel  knowing  of  unlawful  commumcations  ^.ith  the  juiy 

todisclosetocourt,  364  (12).  ^  ■„^   ^ar.  ,x^ 

so  of  improper  remarks  made  by  juror  during  the  trial,  365  (3). 
counsel  must  Object  knowing  of  an  improper  paper  going  to  juiy  room,  3o3 

efJect'o?"  consent  to  or  acquiesence  in  irregularity  by  a  party,  prisoner  or 

obTecrn'constituting  ground  for  new  trial  must  be  seasonably  taken.  428. 
'       counsel  may  waive  right  of  challenging  grand  jurors  54o  note, 
objections  to  grand  jurors  waived  by  plea  of  not  guilty.  5oU. 
otherwise  as  to  objections  apparent  of  record,  5ol. 

WITNESSES. 

jurors  were  in  early  times,  1.  oi,^.,i,i  i.p  cn-orn   216 

juror  Laving  personal  kno^^ ledge  of  the  controversy  should  be  s^oin,  -16. 


782  INDEX. 

WITNESSES  — Continued. 

jurors  must  not  disclose  private  knowledge  in  jury  room,  ib. 

jurors  summoned  as  witnesses  also  are  subject  to  challenge,  ib. 

conmiunications  between  jurors  and  witnesses  during  the  trial,  852. 

re-examination  of  in  jury  room  groimd  for  a  new  trial,  353. 

fees  received  by  juror  as  a  witness  not  a  gratuity,  37!). 

power  of  grand  jury  to  detain  in  custody,  .59.5, C47. 

court  may  punish  for  contempt  of  authority  of  grand  jui-y,  59G,  G24,  647. 

indorsement  of  list  of  upon  indiotment,  6S4. 

statutes  requiring,  684  (1). 

policy  of  these  statutes,  C84  (2). 

by  whom  made,  684  (3). 

sufficiency  of  indorsement,  684  (4). 

objection  for  want  of,  est  (5). 


H^H 


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